New Papers Reinforce Alito's Judicial Conservatism
ROBERT SIEGEL, host:
The Supreme Court nomination of Samuel Alito will be the first business before Congress in the new year. In the weeks since President Bush nominated Alito, the National Archives has released thousands of pages from his years with the Justice Department in the 1980s. Three hundred new pages were made public today, and as NPR's Ari Shapiro reports, they show more of the young Alito eager to promote the agenda of then-President Ronald Reagan.
ARI SHAPIRO reporting:
Samuel Alito's records reveal a cautious, conservative lawyer. For example, in the area of civil rights, Alito signed on to a 1984 Supreme Court brief advocating a narrow approach to affirmative action. The case involved a school system in Jackson, Michigan, that had to lay off a group of teachers. The school board wanted to keep minority teachers, even if that meant firing white teachers with more seniority. Alito's office said that plan illegally discriminated against whites. The Justice Department argued that any system granting racial preferences to someone who had not personally been the victim of discrimination was unconstitutional. Abigail Thernstrom is a scholar at The Manhattan Institute.
Ms. ABIGAIL THERNSTROM (The Manhattan Institute): The administration was troubled by sweeping, remedial, race-conscious policies that classified citizens on the basis of race and ethnicity and promoted racial stereotyping as a consequence.
SHAPIRO: Civil rights groups say that position would have undermined laws designed to help minorities. John Britton is chief counsel for the Lawyers' Committee for Civil Rights Under Law.
Mr. JOHN BRITTON (Chief Counsel, Lawyers' Committee for Civil Rights Under Law): Discrimination is not based upon any individual; that they will deny this individual because of their race or color. It's based upon their membership in a large group. So, therefore, individual remedies would be illogical and ineffective.
SHAPIRO: This does not necessarily mean that Alito's position on affirmative action is identical to that of the Reagan administration.
Ms. PAMELA KARLAN (Stanford University): And that's why it's important to focus on that in the hearings.
SHAPIRO: Pamela Karlan teaches law at Stanford University.
Ms. KARLAN: Government lawyers all the time defend decisions that they might disagree with. As I understand his decisions, though, Judge Alito went into the Reagan administration because he was enthusiastic about the Reagan administration's agenda.
SHAPIRO: In another brief for the Supreme Court released today, Alito was among six Justice Department lawyers arguing for government privacy under the Freedom of Information Act, or FOIA. That's the law that media organizations use to procure records, including these very documents about Samuel Alito.
In the 1982 case, the Grolier Publishing Company asked for a pile of documents from the Federal Trade Commission. The FTC withheld some of the papers, which were about an old lawsuit. Grolier argued that the FTC had to release those documents because the litigation was over. Alito's office disagreed, arguing that it, quote, "would have a particularly adverse and demoralizing effect on government attorneys if those attorneys knew their notes and memos could someday become public." The government won that case in a near unanimous decision, and the FTC was not required to give up its papers.
Today the case seems relevant because the Bush administration has often fought to keep some of its records secret. That issue has reached the high court before and may do so again. Scott Armstrong runs Information Trust, which tracks government secrecy, and he does not see the 1982 case as being controversial.
Mr. SCOTT ARMSTRONG (Information Trust): We've come to accept that we can't get these materials. And in this particular case the notion that a corporation should be able to go after some subset of materials to turn the government's position around isn't particularly appropriate. This was a very traditional case.
SHAPIRO: One memo today did express Alito's personal opinion. It was in a case involving the Black Panthers. The activist group sued dozens of high-ranking federal officials in the 1970s, claiming they were trying to destroy the Panthers. In a 1981 memo, Alito said he didn't think it was worth trying to convince the Supreme Court to throw the case out. He suggested fighting it out in court. In the end, the Justice Department decided to go the other way, and the Supreme Court agreed and threw the Panthers' case out.
The Senate Judiciary Committee begins its hearings on Alito on January 9th. Ari Shapiro, NPR News, Washington.
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