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January 13, 2006 - Drug War Chronicle (US)

Alito Hearings Yield Inconclusive but Mostly Bad Forecasts for Drug War Issues

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This week's Senate Judiciary Committee hearings on the nomination of Judge Samuel Alito to the US Supreme Court shed more heat than light on the nominee and his views on critical legal and constitutional issues. In an era where such hearings have devolved more into political theater with senators posturing and nominees trying to reveal little, that is to be expected.

Judge Alito's personal history and judicial record make it clear that he is a conservative jurist, and not the libertarian variety of conservatism. A member of the Federalist Society, Alito served in the Reagan administration Justice Department as an assistant to the Solicitor General, then became a drug-fighting US Attorney in New Jersey. Since 1990, he has sat on the US 3rd Circuit Court of Appeals. Unlike President Bush's previous two nominees to the Supreme Court, new Chief Justice John Roberts and failed candidate Harriet Miers, Alito's years on the bench have provided a track record on which to assess his judicial philosophy.

On criminal justice issues, Alito has consistently come down on the side of police and prosecutors. According to a graphic analysis prepared by the Washington Post, in cases involving criminal law, search and seizure, and sentencing, Alito sided with the prosecution in 28 of 32 cases. In nine of those cases, he sided with prosecutors even when the majority of the court did not.

Perhaps the most searing case was that of Doe v. Groody, where New Jersey police on a drug raid strip searched the wife and 10-year-old daughter of a drug suspect although the search warrant did not specify they were to be searched. The family sued police, and the 3rd Circuit Court, then headed by current Homeland Security head Michael Chertoff, ruled in favor of the family. Alito dissented, arguing that police had not violated the family's rights.

Alito's ruling in Groody didn't go over well with Sens. Ted Kennedy (D-MA) and Patrick Leahy (D-VT). Leahy challenged Alito not only on the strip-search case but on another case, Baker, where Alito held that police could detain and search a mother and three teenager children when they arrived at the home of her adult son that was being searched. "The only reason I bring up these two cases, it seems in both of them you went beyond the four corners of the search warrant, and you settled all issues in a light most favorable -- the majority in the opinion didn't, but you did -- in a light most favorable to law enforcement. In fact, in Baker, the majority said that," Leahy charged.

"And I worry about this, because I always worry that the courts must be there to protect individuals against an overreaching government. In this case, your position in the minority was that you protected what the majority felt was an overreaching government. Am I putting too strong an analysis on that?"

"I do think you are, Senator," Alito replied, defending his rulings.

Kennedy zeroed in on the strip-search case. "As a result of your judgment in this case and... we have the kind of conduct against this 10-year-old which she will never forget," said Kennedy. "Why, Judge Alito?," he asked dramatically.

"Senator, I wasn't happy that a 10-year-old was searched," Alito responded, adding that the search was carried out by a female officer. "And I don't think there should be a Fourth Amendment rule -- but, of course, it's not up to me to decide -- that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs? That would lead to greater abuse of minors."

Alito also dissented when the 3rd Circuit ruled state officials had violated defendants' right to a speedy trial, and when his colleagues ruled that a US District Court was authorized to reduce a convict's sentence under the federal sentencing guidelines. Again, he dissented when the 3rd Circuit held that a defendant should be granted habeas corpus because the state had not proved the defendant's intent beyond a reasonable doubt.

Neither has Alito been a friend to prisoners. According to the Washington Post analysis, in six cases he heard regarding prisoners, he ruled against them every time. In one case where his colleagues struck down a ban on prisoners in long-term maximum security units from receiving newspapers or magazines, Alito dissented. The ban was within the prison's legal authority, he wrote.

On the other hand, if Alito had been sitting on the Supreme Court when it heard the Raich medical marijuana case, there might have been a more favorable outcome. It was three conservatives, after all, who voted in the minority in favor of states' rights and limits to the reach of the Commerce Clause (the doctrine used to declare federal supremacy over California's medical marijuana law), Chief Justice Rehnquist and Associate Justices Thomas and O'Connor. In a case similarly pitting states' rights against federal power under the Commerce Clause, Alito dissented from a majority opinion holding that Congress has the power to ban machine guns. In his dissent, Alito emphasized "the system of constitutional federalism."

That opinion came in for scrutiny at the hearings, too, but with little revealed. Sen. Diane Feinstein (D-CA), more concerned with preserving the reach of federal power on a range of liberal issues than defending her state's right to protect medical marijuana patients, grilled Alito on the topic, as did fellow Democrat Sen. Charles Schumer (D-NY), who asked, "What about the commerce clause? Raich came to the court a couple of years ago... You talked about the commerce clause being settled."

Alito's response provided little clue to how an Alito tenure might affect such issues: "Well, it depends on which commerce clause cases you are talking about," he posited. "Certainly, the initial commerce clause cases that moved away from the pre-New Deal understanding of the commerce clause have been on the books for a long time."

Alito seems likely to be confirmed as the next US Supreme Court justice. If past rulings are an indication of what is to come, then don't expect the drug war to find much in the way of checks and balances from this nominee. The Commerce Clause could be an exception, and if so it could be a big one. But the hearings leave observers able to do little more than speculate about that.

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