Sen. Leahy Statement on Documents Released by National Archives Relating to Alito Nomination
25 December 2005Following is the 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:
"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."
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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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