Documents Show Alito As Cautious

WASHINGTON – As a young lawyer in the Department of Justice, Samuel Alito argued against asking the Supreme Court to review a Black Panther lawsuit, documents released yesterday show. It was the third time in less than a month that papers from the Supreme Court nominee’s early career in the Reagan administration show him pressing for a more restrained approach to legal challenges than his colleagues at the time.The Black Panther case involved a $100 million lawsuit the group had filed against government officials alleging a government plot to shut them down. Judge Alito, who was an advocate in the office of the Solicitor General at the time, said the case should be left to a lower court. The solicitor general, Charles Fried, ignored the advice and petitioned the high court to hear the case.Mr. Fried won the case before the Supreme Court with the help of a legal brief written, in part, by Judge Alito. But, Mr. Fried said Judge Alito’s initial advice in the 1982 case was consistent with his generally cautious method. Three former attorneys general, the Federal Bureau of Investigation, and the Central Intelligence Agency had urged Mr. Fried to take the case to the Supreme Court.Mr. Fried cited two other documents that recently surfaced from Judge Alito’s early career as evidence of the young lawyer’s prudence: A 1985 memo in which Judge Alito urged the Reagan administration not to look to the high court to overturn Roe v. Wade, arguing for an incremental approach instead. And a 1986 memo in which he told the administration not to expect the court to grant blanket immunity for federal officials who order wiretaps without a warrant. Judge Alito anticipated the court’s rulings in both cases.“He was a very cautious lawyer,” Mr. Fried, now a professor at Harvard Law School, told The New York Sun in a phone interview. “People come up with two examples – the wiretap and the abortion case. In both cases, the recommendations he made were ‘Don’t go there.’ He said a lot of other things like ‘Let’s move slowly.’ But the bottom line is that all these hot dogs are pushing you in one direction, and he said not to. He said, ‘Don’t argue that the attorney general is immune. You’re going to lose,’ and, ‘Don’t argue to overturn Roe v. Wade. You’re going to lose.’ I didn’t take his advice in either case.”Judge Alito’s memo in the Black Panther case was one of two documents released yesterday by the National Archives in which race was an issue. The other was a brief Mr. Fried submitted to the Supreme Court in 1984 arguing that public employees should not have preferential protection against layoffs on the basis of race. Mr. Fried said he and Judge Alito worked together on the brief, which the Supreme Court later agreed with by a 6-3 vote.Mr. Fried said he recalled Judge Alito writing a portion of the brief in which he argued against favoring minority teachers because they serve as role models. The section he cited reads:“The most powerful role models are those who have succeeded without a hint of favoritism. For example, Henry Aaron would not be regarded as the all-time home run king, and he would not be a model for youth, if the fences had been moved in whenever he came to the plate.”Last month, Democrats raised questions about Judge Alito because of a 1985 job application for deputy assistant attorney general in which he said he was “particularly proud” of work he had done in advancing Reagan administration’s policies on abortion and affirmative action. The employment discrimination brief that was released yesterday is likely one of the cases he was referring to in the application.Mr. Fried said he does not regret ignoring Mr. Alito’s advice on the occasions he was urged to proceed incrementally.“I thought it was my job to present the administration’s position in a lawyerly way, so I did,” he said. “But Sam’s advice was much more cautious than I was. And I think, in a way, that was his job. The job of someone giving advice is to keep you out of trouble, not to get you into it.”President Bush nominated Judge Alito in late October to replace Justice O’Connor, who is retiring. His confirmation hearing is scheduled to begin January 9.

Documents Show Alito As Cautious

Documents Show Alito As Cautious

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