More Documents Detail Judge Alito's Legal Views

The National Archives has released more documents from the legal career of Judge Samuel Alito, nominated to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. Farai Chideya talks with Ari Shapiro about what these new documents say about Alito's attitude on executive powers, and what it may mean for Alito's chances of confirmation to the high court.

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FARAI CHIDEYA, host:

From the studios of NPR West, this is DAY TO DAY. I'm Farai Chideya sitting in for Alex Chadwick and Madeleine Brand.

Coming up on the program, the Navajo Nation struggling with the spread of methamphetamine across the reservation. But, first, in less than two weeks, the Senate will begin its confirmation hearings for Samuel Alito. He's President Bush's nominee to succeed Justice Sandra Day O'Connor on the Supreme Court. Supporters and opponents have had two months to prepare for these hearings. They've had some help from the National Archives, which has released thousands of pages of documents from Alito's years at the Justice Department. The latest batch of nearly 300 pages came this morning, and NPR's Ari Shapiro is here to walk us through them.

Ari, welcome back to DAY TO DAY.

ARI SHAPIRO reporting:

Thanks.

CHIDEYA: So affirmative action promises to be a big issue in the hearings. Today's release has a document on that subject. What does it say?

SHAPIRO: Yeah, it's a Supreme Court brief from 1982, and the case had to do with a school board that was implementing layoffs. And the school district wanted to lay off white teachers who had more seniority before laying off minority teachers with less seniority. And so at the time Samuel Alito was a lawyer in the solicitor general's office at the Justice Department, and that office argued that the school board's plan was basically discriminating against whites.

The brief said because the equal protection clause protects personal, not group, rights, a measure cannot be fairly characterized as a remedy for a violation of equal protection unless it provides relief to an individual who was personally victimized by discrimination. And the Supreme Court in the end agreed that the layout plan was unconstitutional, but they rejected the government's argument that affirmative action plans could only help the individual victims of discrimination.

CHIDEYA: There was also a case in today's documents about government privacy. What did Alito argue there?

SHAPIRO: Well, basically his office wanted more government privacy. The case dealt with the Freedom of Information Act, which incidentally is the act that led these documents to be released. And the question was: How much information does the government have to give under this act? The government wanted to withhold certain documents that were related to a lawsuit that had concluded. And Alito's office argued that if government lawyers knew that someday their work would become public, it would squelch their work. This is a relevant question today because there's this ongoing debate about government secrecy surrounding the Bush administration. President Bush and Vice President Cheney have argued for more secrecy, and this is a case that could eventually--rather not a case but an issue that could eventually reach the Supreme Court.

CHIDEYA: Both of the documents you've described are briefs that Alito signed onto. Did the National Archives release any documents today that showed Alito's own personal opinion?

SHAPIRO: Yeah, there was one document in a case involving the Black Panthers, and this was sort of this huge, sweeping lawsuit where the Black Panthers allege that the government had been trying to overthrow their group, and they filed suit against dozens of high-level officials. And basically a lower court threw out the case and said it was frivolous. An appeals court said, `No, we should let the case go forward.' And in a memo that Alito wrote during his years at the Justice Department, Alito said, `I don't think we should appeal this to the Supreme Court. I think we should let the case go,' which is interesting because really that would have been a favorable opinion for the Black Panthers. That opinion did not win out. In the end, the Justice Department did appeal to the Supreme Court, asking the justices to throw out the Black Panthers' lawsuit, which is exactly what they did.

CHIDEYA: This isn't the first time we've seen Alito's colleagues overrule his opinion, is it?

SHAPIRO: No, there have been two previous document drops, and in each of those we've seen Alito make recommendations that the Justice Department did not follow through with. One of those had to do with abortion, where Alito argued that making an incremental argument for overthrowing Roe vs. Wade would be better than taking the issue full force. In the end, the Justice Department made the full-force argument and lost. The other was a case involving illegal domestic wiretaps. The question was whether federal officials should have absolute immunity from suits when acting in the interest of national security. Again, the Justice Department made the argument that Alito recommended against making, and the Justice Department lost to the Supreme Court.

CHIDEYA: NPR's Ari Shapiro, thanks so much.

SHAPIRO: You're welcome.

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