The scurrilous anti-Alito campaign continues

By Michael Gaynor

The small, but tyrannical, secular extremist minority is determined to block Judge Alito's confirmation as Justice Sandra Day O'Connor's successor on the United States Supreme Court. (That too is a sufficient reason to confirm the brilliant, experienced, far-minded jurist!)

Their biggest fear is that Judge Alito will form part of a majority that will reexamine and revise the Supremes' outrageous opinion that the First Amendment mandates governmental neutrality between religion and irreligion and bans governmental support for religion generally. Polls show that secular extremists are...the extremists, and that those who favor "under God" in "The Pledge of Allegiance," "In God We Trust" on America's currency and coins, Ten Commandments displays on public property and creches and menorahs on town greens in December are the mainstream, the vast majority.

Most Americans would be very pleased with Judge Alito serving among the Supremes if they had the time to review his entire record. They don't, of course, so the real extremists are out to distort his record, and hope the truth does not prevail. This time their distortions will be addressed by plenty of organizations and person determined to protect a good person from demonization by his diabolical enemies.

A judge is supposed to apply the law, regardless of his or her personal beliefs, so it is not supposed to matter whether a nominee is a Catholic, an evangelical Christian, another kind of Christian, a Jew, a Moslem, an agnostic, or an atheist.

Unfortunately, Judge Alito's despicable detractors are determined to block his confirmation because he is a Catholic and, as such, shares the fundamental Catholic beliefs that life begins at conception and abortion is a wrong instead of a right. Is that a guarantee that Judge Alito will vote to overrule Roe v. Wade? No, because more is required to overrule than a recognition that a decision was wrong. But Judge Alito's detractors want a nominee who personally believes abortion is NOT a wrong, because that personal belief is virtually certain to assure that its holder never will vote to overrule Roe v. Wade.

America's Declaration of Independence unambiguously acknowledges God and asserts the God-given and inalienable rights to life, liberty and the pursuit of happiness. Judge Alito's record indicates that he will protect those rights, as the Founders expected them to be protected, instead of twist them beyond recognition by the Founders, as the Supremes did when they suddenly tried to impose governmental neutrality between religion and nonreligion or irreligion more than 150 years after the Constitution and the Bill of Rights (including the First Amendment) were written and ratified.

The secular extremists seem to think that the right to pursue happiness covers abortion on demand (preferably at taxpayer expense) and trumps the right to life of unborn babies. And also that the right to liberty trumps the right to life, so that a President of the United States is a tyrant instead of a protector if he or she authorizes warrantless eavesdropping for national security purposes, as though it is more important that there be no such eavesdropping on a conversation between an American in the United States and a terrorist outside the United States, even if the price of protecting that liberty interest is a delay that allows terrorists to explode a nuclear device in New York, or Chicago, or Los Angeles, or Houston, or Miami, or Seattle, or Phoenix, or San Francisco, or all of them and more.

It is unsurprising that Judge Alito is sensible about such things instead of stupid.

On December 23, 2005, Associated Press reported: "Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror."

Thanks be to God!

"Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse — seen now through the prism of Bush's actions — as well as clues to the judge's understanding of how the Supreme Court operates."

If he had not, THEN there would be a problem!

"The National Archives released the memo and scores of other documents related to Alito on Friday; the Associated Press had requested the material under the Freedom of Information Act. The memo comes as Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant."

"Fire" from mostly hypocritical, rabidly partisan Dems who would be supportive if Jimmy Carter or Bill Clinton were still President and doing exactly the same, or much the same, thing. May they repent, or burn in hell, or be at ground zero if there is a terrorist attack that could have been prevented by such surveillance (which still should be secret, and would be, but for at least one criminal leaker and the irresponsibility of The New York Times).

"Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9. The memo's release Friday prompted committee Democrats to signal that they will press the conservative jurist about executive powers."

Fine! Ask. President's Carter, Clinton and Bush all should be proud for giving their now challenged authorizations. They were all right. And, unless Judge Alito believes that the issue may come before the Supremes (which does not quite seem inconceivable to me), he should laud all three!

"The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. 'I do not question that the attorney general should have this immunity,' Alito wrote. 'But for tactical reasons, I would not raise the issue here.'"

Not a problem. A lawyer is supposed to give such tactical advice.

"Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot.

"The FBI had received information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War.

"In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.

"'The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.

"'When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook,' the brief said.

"Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito."

They were right!

"Alito's analysis about the court and the need for an incremental legal strategy proved prescient. The case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"'The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity,' the court held.

"However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment."

The principled Reagan administration was wiser than the Supremes!

"The decision was consistent with the Supreme Court's unanimous ruling in 1972 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security."

Whether that makes sense depends upon the imminence and the severity of the threat. The Constitution is not a suicide pact. The Supremes too should have learned a lesson from the September 11, 2001 attack. And the critical authorization by President Bush now "under fire" involves important distinctions: communication with foreigners believed to be terrorists during the War on Terror.

"Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity."

That would have been a better approach.

"'There are also strong reasons to believe that our chances of success will be greater in future cases,' he wrote. He noted that then-Justice William H. Rehnquist would be a key vote and would recuse himself from the Nixon-era case."

Sounds smart to me.

"The documents were among 45 released by the National Archives as the holiday weekend approached. A total of 744 pages were made public."

Happy reading!

"The White House and Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, dismissed any link between the 1984 memo to Bush's authorization of electronic surveillance without a warrant to thwart terrorism.

"'Any connection between Judge Alito's 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch,' Cornyn said in a statement."

True! Democrat Presidents (Franklin Delano Roosevelt and Jimmy Carter) had authorized warrantless surveillance long before Ronald Reagan became President. And President Clinton subsequently took the same position.

"But Democrats seized on the memo and vowed to press Alito on the matter at his confirmation hearings."

It's what they do!

"'At a time when the nation is faced with revelations that the administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability,' said Sen. Edward Kennedy, D-Mass."

Is there a way to hold Senator Kennedy accountable for undermining America in the War on Terror?

© Michael Gaynor