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If you cherish your rights, this nominee bears questioning
When Samuel Alito was a Justice Department lawyer in the 1980s, he wrote that he saw no legal problem with a police officer shooting and killing an unarmed 15-year-old who was fleeing from a $10 burglary.
Alito, now nominated to the U.S. Supreme Court, said the shooting "can be justified as reasonable" and advised his bosses that the courts shouldn't interfere with police discretion to use deadly force. But the Supreme Court thought otherwise - by a 6-3 vote. Justice Byron White noted that the Constitution bars "unreasonable" searches and seizures, adding acidly that "a police officer may not seize an unarmed, nondangerous suspect by shooting him dead."
The case is one of numerous examples of Alito's troubling deference, both as a government lawyer and a judge, to the power of government institutions, employers and others in authority. Whether that deference adequately protects rights of individuals deserves very close scrutiny at Senate hearings on his nomination next month:
o In a death penalty case, Alito rejected a 17-year-old's claims that his public defenders had failed to use mitigating evidence of mental retardation and traumatic upbringing. Again the Supreme Court disagreed, using the case to warn state courts that shoddy defense work in capital cases shouldn't be tolerated.
o In an employment case, Alito was alone in siding with a hotel owner seeking dismissal without trial of a housekeeper's claims of illegal demotion and sexual discrimination. By 12-1, his colleagues ordered a new trial.
o In a search case, Alito saw nothing wrong with a police strip search of a woman and her 10-year-old daughter though there was no warrant naming them as targets of an investigation. Again, his fellow judges ruled otherwise.
Some other cases, however, show Alito in a different light.
He ruled against a Pennsylvania prosecutor who had removed 13 of 14 blacks from the jury pool in a case involving a black murder defendant. He rejected the argument of the Newark, N.J., police department that Muslim officers should be forced to shave their beards. And he rapped a New Jersey school district for not responding adequately to the prolonged bullying and harassment of an emotionally troubled boy.
No one expects a judicial nominee from this administration to brandish a "Question Authority" bumper sticker. But, prompted by the abuses of British colonial rule, the Founders put a broad range of individual rights in the Constitution. Others have been added since, by constitutional amendment and acts of Congress.
Alito's record suggests little deference to those most basic American values. This merits aggressive questioning before the Senate puts him on the nation's highest court, where he would have the power to strip away rights Americans assume to be theirs.