Alito to Face Queries on Executive Power Stance

When Judge Samuel Alito was nominated for the Supreme Court, members of the Senate Judiciary Committee pledged to grill him at confirmation hearings on his view of the limits of presidential power. Now a 1984 memo is adding more fuel to the fire.

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The new year will bring another round of Supreme Court confirmation hearings, this time for Judge Samuel Alito. The National Archives has produced a stream of documents in recent weeks from Alito's years in government. The latest batch came out yesterday. Even though they were written 20 years ago, they cover some of today's most controversial issues, including executive authority and racial discrimination. NPR's Ari Shapiro has this report.

ARI SHAPIRO reporting:

From the day Judge Alito was nominated, members of the Senate Judiciary Committee said they planned to challenge him at his confirmation hearings about the limits of presidential power. Now committee members have a few new questions on the subject. In a memo from 1984, Alito argued that high-ranking government officials should have absolute immunity from civil lawsuits when they break the law in the interests of national security.

The case has modern-day resonance. It concerned domestic wiretapping without judicial oversight, something the Bush administration has been doing since 2002. Peter Swire led a White House task force under President Clinton on updating wiretapping laws. Now he teaches law at Ohio State University.

Mr. PETER SWIRE (Ohio State University): In the current controversy, one of the biggest questions is whether the president has inherent authority to ignore the statutes in the name of national security. The absolute immunity issue that Judge Alito was writing about back in the 1980s is central to that. It would say that an attorney general would be able to violate the law in the name of his inherent authority.

SHAPIRO: The case Alito was writing about concerned President Nixon's attorney general, John Mitchell. In investigating a terrorist plot, Mitchell authorized a domestic wiretap without a judge's permission. Alito said in the memo that he believed Mitchell had absolute immunity from a lawsuit by the man whose phone was tapped. James Copland of The Manhattan Institute says this is a valuable principle.

Mr. JAMES COPLAND (The Manhattan Institute): If you're worried that you're going to get sued later for acting decisively in a time of war, it's impossible to fight a war; it's impossible to protect the American people from terror. So that has to be the right legal answer.

SHAPIRO: But while the Supreme Court granted Mitchell immunity in this instance, it did not grant the blanket immunity that the Justice Department fought for. The justices said there's a danger that if federal officials are given absolute immunity, they'll disregard constitutional rights.

The most recent document drop also provided fodder for the debate over Alito's position on civil rights. In two briefs to the Supreme Court, Alito and other lawyers for the solicitor general's office argued for a narrow interpretation of the law that bars employment discrimination on the basis of race. Charles Cooper was at Justice when the briefs were written, and he's now a partner at Cooper & Kirk law firm. Here's how he describes the Reagan administration's philosophy.

Mr. CHARLES COOPER (Cooper & Kirk): You could not extend some type of preferential relief, such as a preference in promotions or a preference in a layoff scheme that favored someone who had not actually been victimized by the discrimination.

SHAPIRO: In other words, a remedy for racial discrimination couldn't assist blacks and Hispanics generally; it had to help the specific black and Hispanic individuals who showed in court that they'd been discriminated against. When Alito worked on that brief, Ralph Neas ran the Leadership Council on Civil Rights. Now he's head of People for the American Way, fighting the Alito nomination.

Mr. RALPH NEAS (People for the American Way): You do it person by person, case by case, you are not going to address the systemic discrimination that has existed in our society for centuries.

SHAPIRO: That's what the Supreme Court held as well. In both cases, a divided court ruled against the government's position. Now observers are looking ahead to Alito's confirmation hearings and wondering how he will decide these issues if he becomes one of the nine justices.

Ari Shapiro, NPR News.

ELLIOTT: You're listening to ALL THINGS CONSIDERED from NPR News.

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