Nominee supports extensive immunity

In a 1984 memo on a wiretap case, he wrote officials were free from liability.
Chicago Tribune
WASHINGTON -- Supreme Court nominee Judge Samuel Alito argued in the mid-1980s that government officials who order illegal domestic wiretaps are immune from lawsuits, according to newly released documents from Judge Alito's service in the Justice Department.
Nevertheless, Judge Alito urged fellow Justice Department lawyers to avoid testing his expansive view of executive branch immunity because he wasn't sure it would be a winning argument in court.
Judge Alito's 20-year-old thoughts on wiretapping have special resonance now because of recent revelations that as part of his anti-terror strategy President Bush has authorized domestic electronic spying without a court order.
Documents released
Even before Friday's release of 744 pages of Judge Alito documents from the National Archives, lawmakers, unsettled by the disclosures of warrantless surveillance by the Bush administration, had notified the judge that they intend to question him about his views on the subject during his confirmation hearings slated to begin Jan. 9.
In a June 1984 memo urging the Justice Department to appeal an adverse ruling in a wiretap case to the Supreme Court, Judge Alito noted the Reagan administration's position that the president and Cabinet officials were immune from personal liability. "I do not question that the attorney general should have this immunity, but for tactical reasons I would not raise the issue here," the judge wrote.
Those tactical reasons, according to Judge Alito, included the likelihood that a sympathetic justice would recuse himself from hearing the case and because of the unsympathetic public profile of former Attorney General John Mitchell, who had ordered the eavesdropping. In 1975, Mitchell became the only attorney general imprisoned after he was convicted of obstruction of justice and other charges in the Watergate scandal.
The latest release of records includes a detailed Judge Alito proposal for an incremental attack on the Roe vs. Wade abortion rights case in 1985, similar to a memo from the same year disclosed in an earlier set of archival documents.
In an acknowledgment of how controversial the abortion positions staked out by Judge Alito were, his boss at the time, Solicitor General Charles Fried, wrote in a cover note, "I need hardly say how sensitive this material is, and ask that it have no wider circulation."
In another memo, Judge Alito advocated making it easier for public officials to sue for libel, a position rejected by his colleagues.
Zealous conservative
Records made public so far add to a developing portrait of a meticulous, politically canny lawyer and a zealous conservative, at least when he served in the Justice Department during much of the 1980s.
Judge Alito and his supporters have said that his writings reflected the views of the Reagan administration and should not be considered a template for how he would rule as a Supreme Court justice.
Since 1990, the 55-year-old Judge Alito has been a judge on the Philadelphia-based U.S. 3rd Circuit Court of Appeals. Bush nominated him in October to succeed Justice Sandra Day O'Connor, who is retiring.