- The Washington Times - Sunday, January 8, 2006

With the battle over the nomination of Judge Samuel A. Alito Jr. to the Supreme Court set to take center stage on Monday, the American people have undoubtedly become familiar in past weeks with his critics — along with their criticisms, attacks and mischaracterizations.

If the best predictor of future behavior is past performance, then it is reasonable to expect that a host of rather predictable, knee-jerk criticisms — which have already been refuted with fact — will be leveled against this fine nominee in a misguided effort to discredit his qualifications.

As a preview of the coming debate, here is a guide to some of the charges one might expect to hear most often.

Judge Alito will be charged with supporting the ability of administration officials to order illegal wiretaps.

This charge will be leveled regardless of the fact that the case in question, Mitchell v. Forsyth, had nothing to do with the legality of wiretapping. In a 1984 memo, Judge Alito simply argued that the attorney general of the United States should not be held personally liable for money damages because there were other means to keep the activities of government officials in check.

Although the Reagan administration sought “absolute immunity” for the attorney general, Judge Alito advised the administration to seek only more limited “qualified immunity” instead, advice the administration ultimately rejected.

Judge Alito’s recommendation of limited immunity was actually more moderate than the Carter administration’s position in favor of absolute immunity in the very same case. In fact, President Carter’s solicitor general was quoted in a Dec. 8, 1980 Associated Press story as saying: “absolute immunity is absolutely necessary” for both the president and his staff — a broader position than that argued by Judge Alito in 1984.

Despite these facts, however, expect to hear Judge Alito’s record on the issue to be grossly distorted, depicting him as supportive of absolute presidential power and willing to justify warrantless wiretaps of the American people. There will be an attempt to create a nexus between the 1984 case and the recent NSA story.

Judge Alito will be charged with indifference to racially motivated pre-emptory challenges.

This accusation will disregard the fact that Judge Alito has applied the law regarding jury selection in an evenhanded fashion, upholding or rejecting such challenges according to the letter of the law. For example, in the case of Brinson v. Vaughn, involving a black murder defendant, Judge Alito — both writing for the court and applying the Batson Supreme Court’s legal standard — held that the prosecutor’s use of pre-emptory strikes in this case raised the inference of discrimination.

Judge Alito will be criticized for an alleged inclination to defer judgment to immigration courts.

This criticism will come despite the fact that Judge Alito has consistently applied this country’s immigration laws in a manner that is both consistent with congressional mandates and judicious.

For example, in the case of Oyebanji v. Gonzales, Judge Alito sided with a permanent legal alien resident, and held that a conviction for vehicular homicide did not warrant removal from the United States, and the court granted the petitioner’s request for relief from an order of removal issued by an immigration judge.

The fact is, Judge Alito’s rulings fall nowhere near the category of cases that the American people consider to be controversial, such as the redefinition of marriage, or the expulsion of the Pledge of Allegiance and other expressions of faith from the public square, or the elimination of the three-strikes-and-you’re out law and other penalties against convicted criminals, or the forced removal of military recruiters from college campuses — just to name a few. We should never confuse the struggle to interpret the ambiguous expressions of a legislature — which is what Judge Alito and all good judges have done — with refusing to obey a legislature’s directives altogether.

The Senate judicial confirmation process has, in the recent past, been both emotional and divisive. That should not be the case, and we should certainly not engage in or indulge any debate which distorts or misrepresents the record of an individual with as fine a record as that of Judge Alito. Let us commit ourselves to a fair process — with full investigation, full questioning, full debate and an up-or-down vote.

Sen. John Cronyn, Texas Republican, is a member of the Senate Judiciary Committee.

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