“Troubling” analysis

Jonathan Turley finds Judge Alito a “troubling nominee” because of his “extreme views of government authority over citizens’ rights” in a time when “President Bush has claimed virtually absolute authority to act in contradiction of federal and international law.” I find Turley’s distortion of Alito’s record troubling.
Turley relies first on positions that Alito took as a Justice Department employee, for example, the brief he filed for the government in Garner v. Tennessee, involving the shooting of a boy who refused to stop when ordered to be the police after robbing a home. But Alito was simply arguing the government’s position, as was his duty as a lawyer. Moreover, three of the nine Supreme Justices agreed with the government’s position (we don’t know whether Alito did), so it’s difficult to claim it was beyond the pale.
Alito has been a judge for 15 years, so if he holds extreme positions about government power, Turley should be able to demonstrate it through the Judge’s opinions, without resorting to his work as an advocate. Turley cites only two cases. The first, Doe v. Groody, has been discussed at length here and elsewhere in the blogosphere. Turley ignores that discussion, and distorts what Alito said. He states that Alito “wrote a dissenting opinion arguing that police officers could strip-search a mother and her 10-year-old daughter, despite the fact that neither was named in the search warrant nor suspected of crimes.” What Alito wrote was (1) that the warrant authorized the search of any persons found on the premises (the mother and daughter were on the premises) and (2) that even if the warrant didn’t contain such authorization, the police officer being sued for having conducted the search reasonably could have read the warrant that way. Turley presents no analysis that would undermine either position.
Turley’s second case, Baker v. Monroe Township, raises almost the same issues — the treatment of bystanders during a search, and the proper interpretation of a search warrant, in the context of a lawsuit against a police officer. If Turley were more temperate, he might conclude not that Alito holds extreme views about government power, but that he disagrees with Turley on this one issue. Disagreeing with Turley (and with several judges on the Third Circuit) on this narrow issue hardly disqualifies Alito from serving on the Supreme Court.
In any case, Turley’s analysis of Baker is, again, misleading. The third-party bystanders during the drug bust were, indeed, searched and handcuffed while the police conducted the raid. But there was no evidence that the police officer being sued had ordered these actions, and insufficient evidence (Alito thought) that he knew or should have known that the other officers were acting unlawfully.
Alito may not be the judge you want to get if you found yourself in the company of drug dealers during a raid and want to sue the police for not making sufficiently fine distinctions about how you should have been treated. But he has written hundreds of opinions and voted in thousands of cases. If this is the best Turley can do to show that Alito’s a threat to liberty, then Turley shouldn’t be troubled.


Books to read from Power Line