- The Washington Times - Wednesday, December 28, 2005

Supreme Court nominee Judge Samuel A. Alito Jr. went toe-to-toe with his Department of Justice colleagues and superiors in a 1981 memo, released yesterday, urging them not to seek dismissal for a high-profile lawsuit by the militant Black Panthers that accused the government of racism.

Judge Alito was an assistant in the Solicitor General’s Office when he wrote the Nov. 19, 1981, memorandum, which was at odds with the advice given by three former attorneys general, the CIA, the FBI and the Justice Department’s own civil division, according to records made public yesterday.

The case, which ultimately was dismissed by the Supreme Court, was a lawsuit filed by the Black Panthers, who accused a wide array of government officials of conspiring to destroy the group.

The 24-year-old memos are part of a batch of 17 documents the National Archives released yesterday from the files of lawyers who worked with Judge Alito when he was a young lawyer in the Reagan administration.

They are expected to be the last records made public before Judge Alito appears before the Senate Judiciary Committee for his confirmation hearings in January.

Judge Alito’s lonely position on the Black Panther lawsuit caused little stir from either side yesterday, but was clearly a worrisome matter at the time.

“This is not an ordinary lawsuit, and the issues may consequently take on added significance,” Judge Alito wrote in his five-page memo.

The Panthers were seeking $100 million in damages, accusing more than 30 top federal government officials of conspiring for years, beginning in 1968, to destroy the militant group.

Among those sued were the directors of the CIA and the FBI, several attorneys general, Internal Revenue Service commissioners, Treasury secretaries and postmasters general. Also sued was future President George H.W. Bush, who had been director of the CIA.

Judge Alito’s colleagues and superiors argued that the case should be brought immediately before the Supreme Court for dismissal. Judge Alito agreed that the case was “meritless,” but argued for strategic reasons that the case would be of little interest to the justices.

“None of the legal issues presented by this case seems to warrant Supreme Court review,” he wrote, arguing that the case eventually would be won in lower courts. One of the few reasons he thought it might be worth petitioning the Supreme Court was to send a message “to prevent the harassment of present and former public officials through meritless litigation.”

Nevertheless, the department took the case to the Supreme Court, which agreed to hear it.

Despite his opposition to the original petition, Judge Alito helped draft the legal brief in the 1982 case before the Supreme Court. Justices voted 6-1 to dismiss the lawsuit.

The majority of memos released yesterday merely showed that Judge Alito had been carbon-copied on various memos between other lawyers in the administration.

Judge Alito worked in the solicitor general’s office from 1981 to 1985 and was deputy assistant U.S. attorney general from 1985 to 1987. He later was confirmed to the 3rd U.S. Circuit Court of Appeals, where he now sits.

President Bush nominated him to replace retiring Justice Sandra Day O’Connor. Confirmation hearings are scheduled to begin Jan. 9, and Republican leaders want a final confirmation vote by the entire Senate by Jan. 20.

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