Back when Harriet Miers' nomination to the Supreme Court was pulled, I profiled a few of the likely candidates
to be nominated next. First on that list was Samuel Alito. I wrote then and still believe today that "Alito knows exactly what his right wing masters want from him and will deliver." Next on the list was Michael Luttig, who I'll get back to in a moment.
There's a very timely bit of news today that, while working for the Reagan Justice Department in 1984, Supreme Court nominee Samuel Alito wrote that federal officials should not be subject to accountability for ordering domestic wiretaps without a legally required warrant. However, he felt strongly enough about the unpopularity of his opinion to write that the administration should not make that case publicly.
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."
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 kidnap Henry Kissinger, then national security adviser.
That 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 found.
This speaks directly to the reasons the Bush administration chose Alito over Luttig. During the Miers debacle, one of the reasons Republican insiders gave activists for supporting her nomination was that she had been "Heavily Involved In The War On Terror," according to one RNC memo. Alexander Bolton highlighted this fact in an article for The Hill. (Emphasis mine.)
Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush's close relationship with Miers and the need to confirm a justice who will not interfere with the administration's management of the war on terrorism
, according to a person who attended the teleconference.
Bush knew that Alito would not stand in his way while he skirted the Constitution. Contrast this with Michael Luttig, who is easily as conservative as Alito, but much more willing to buck the GOP party line in the interest of the law. I wrote as much in my speculative post about who Bush would nominate next. Here's The New York Times on Luttig's recent admonishment of the administration's tactics in handling Jose Padilla.
In today's opinion, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government's suggestion that it vacate the September decision upholding the detention of Mr. Padilla for more than three years in a military brig as an enemy combatant.
Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to government's requests because that would compound what is "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."
Judge Luttig wrote that the timing of the government's decision to switch Mr. Padilla from military custody to a civilian criminal trial just as the Supreme Court was considering the case has "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court."
I wondered why Bush would nominate the lesser-known Alito over Luttig, who's seen as something of a judicial rockstar in conservative circles. Now I have my answer. Luttig wouldn't have been the Bush administration's errand boy on the Supreme Court. That's a role Alito has proven himself more than willing to play.