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Comment Of Sen. Patrick Leahy
(D-Vt., Ranking Member, Senate Judiciary Committee)
On New Documents Released Friday
By The National
Archives
Relating To The Nomination Of Judge Samuel Alito
To The U.S. Supreme Court
Friday, Dec. 23, 2005
The Forsyth Brief(doc)
and The Forsyth Memo(pdf)
“These new
documents fill in more blanks and deepen the impression of activism that
colors Judge Alito’s career. They also touch on issues that already
are of great interest to the committee in the upcoming hearings. One
of the most important, and one of the most timely, is the issue of unchecked
presidential authority and the particular issue of warrantless eavesdropping
on the American people.
“The
judges in our independent judiciary are our system’s most crucial check and
balance against abuses and excesses by the President and the rest of the
government in wielding power. Accountability, and even our basic rights,
are lost if our courts fail in this role. These documents raise
further questions about Judge Alito’s views on and commitment to this vital
role of the judicial branch as a check on Executive authority.
“Chairman Specter and I and other members of the committee have informed
Judge Alito, by letter and otherwise, that issues relating to Executive
authority and checks and balances are areas of deep concern that we will
bring to these hearings, and Judge Alito’s answers will be in vitally
important in evaluating his suitability to serve on our nation’s highest
court.”
[DESCRIPTION OF THE JUNE 12, 1985, MEMO from Samuel
Alito to the Solicitor General re: Forsyth v.
Kleindienst (i.e. Mitchell v. Forsyth)
(DOJ3-00285-DOJ3-00291) -- Mr. Alito later wrote the
brief in Mitchell v. Forsyth arguing that the
Attorney General should have qualified and absolute
immunity for civil damages stemming from the
warrantless authorization of wiretaps.
Ultimately, the court ruled that the Attorney
General was qualifiedly immune (because the decision
was made before the Supreme Court clarified that
such warrantless taps were unconstitutional), but
rejected the arguments for absolute immunity.
In this memo, Samuel Alito takes an approach
mirroring what he did in Thornburgh by embracing the
principle of absolute immunity and suggesting
tactical reasons for avoiding taking it head on.
He argues that the Administration should seek cert
only on the appealability of the qualified immunity
claim, not on absolute immunity, but for tactical
reasons: "I do not question that the Attorney
General should have this immunity, but for tactical
reasons I would not raise the issue here." He
lays out why this is not a good case for absolute
immunity, including the fact that they would not
have Justice Rehnquist's vote and that it involves a
controversial official from a controversial era.
In this memo Mr. Alito makes clear his own personal
view in this matter, declaring that he, himself, has
no doubt the Attorney General should have the
immunity.]
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