Papers released yesterday show a young Samuel Alito as a cautious attorney and advisor to the Reagan administration, offering a conservative strategy in terms of the use of the courts for political purposes, as evidenced by two memos reported by the Washington Post and the New York Sun. The main issue involved a Black Panther lawsuit that had won a technical ruling on standing for its lawsuit against a number of government officials, including Bush’s father, that Alito advised should not get challenged. As the Sun reports, Alito underestimated the government argument in the Black Panther case:
As a young lawyer in the Department of Justice, Samuel Alito argued against asking the Supreme Court to review a Black Panther lawsuit, documents released yesterday show. It was the third time in less than a month that papers from the Supreme Court nominee’s early career in the Reagan administration show him pressing for a more restrained approach to legal challenges than his colleagues at the time.
The Black Panther case involved a $100 million lawsuit the group had filed against government officials alleging a government plot to shut them down. Judge Alito, who was an advocate in the office of the Solicitor General at the time, said the case should be left to a lower court. The solicitor general, Charles Fried, ignored the advice and petitioned the high court to hear the case.
Mr. Fried won the case before the Supreme Court with the help of a legal brief written, in part, by Judge Alito. But, Mr. Fried said Judge Alito’s initial advice in the 1982 case was consistent with his generally cautious method. Three former attorneys general, the Federal Bureau of Investigation, and the Central Intelligence Agency had urged Mr. Fried to take the case to the Supreme Court.
The Post notes, however, that Alito had confidence in the government case on the merits and thought the appeal would merely prove distracting:
Alito acknowledged in his memo to Lee that “a decision to the contrary has something to recommend it,” but noted that acquiescing in the D.C. Circuit’s ruling would still leave the government with ample opportunity to win the case in the district court “after a few additional steps are completed.”
As his memo pointed out, the then-31-year-old Alito’s recommendation ran counter to the wishes of the FBI, CIA, Bureau of Alcohol, Tobacco and Firearms, and a long list of former high-ranking officials named in the suit.
Another memo given a bare mention by the Post notes that Alito also advised the Reagan administration not to argue against divestment by state governments in the apartheid nation of South Africa as unconstitutional. At the time, the US had wanted to play a balancing act with South Africa, seeing the issue in the binary Cold War vision and wanted to ensure that the federal government controlled all foreign-policy approaches towards the controversial nation. Alito’s advice not only ran counter to what the Reagan administration wanted to hear, but it also allowed state governments to continue their economic protest of apartheid and discrimination against black South Africans. This runs counter to the attempt to paint Alito as a closet racist.
Even the AP has a nice piece on Alito today, reporting on recollections his students have of a favorite teacher who encouraged them to think for themselves:
Each week for two hours, under the tutelage of a distinguished federal appellate judge by the name of Samuel Alito, the students would hash out issues they knew were or soon would be a big deal as far as jurisprudence goes.
Typical of the class, just working out a definition of “terrorism” took the students weeks, and only then remained a work in progress, they said. Alito would simply shrug when asked if the latest version was right or wrong, as if to remind them how undefined the issue remained in the immediate post-Sept. 11 years, they said.
“This was one of those wide-open debates, on something so prevalent in our lives, that was going to define our time in history. And to discuss this with someone who would be involved in the issue was incredible,” said former student Obadiah English, a Boston attorney who had watched from the law library several stories above downtown Newark, N.J., as the second World Trade Center tower collapsed. ….
Alito encouraged students to take risks and rewarded those who did. Former student Robert Marasco argued in his final paper that torture should never be allowed. Alito gave him an “A” on the paper and for the class, Marasco said.
And the AP report also shows Alito as a jurist who declared a concern over the erosion of civil rights during wartime:
For Alito, the topic of terrorism and civil liberties came up in other encounters with students during the period as well. In a brief visit to Pepperdine University School of Law in March 2003, he taught three hourlong seminars on the subject to first-year students, according to documents and school officials.
Robert Cochran, a professor at the Malibu, Calif., law school who suggested the visit, said Alito came across as dispassionate, deliberate and objective. Yet, Cochran said, he betrayed a concern with the topic.
“He didn’t take a particular stance on the issues but the way that he raised the questions indicated that he was aware that there was a danger that, in times of national crisis, we take unreasonable steps to curb civil liberties,” Cochran said.
Has the national media decided to play fair with Judge Alito? I suspect that they expect Alito to do well in his upcoming hearings and want to prepare their readers for the balanced, thoughtful, and thoroughly professional jurist they will see on television. The smears will have to come from PFAW and AFJ directly from now until then. Right now, it looks like the Exempt Media may be covering its bets, similar to how it acted when they failed to derail the Roberts nomination prior to the hearing.