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  • Sean Rushton

Correcting Democratic attacks

From the White House, corrections to inaccurate statements made yesterday on the Sunday shows. Expect to hear them repeated this week. Senator Schumer: On Meet the Press, Senator Schumer attacked Judge Samuel Alito at length, identifying a number of elements he saw in Judge Alito’s record he finds troubling. Senator Schumer made the following inaccurate statements: “[Alito] was one of the very few justices [sic] to say that the federal government can't regulate machine guns [The] Federal Government has regulated machine guns since the days of John Dillinger.” Correction: The fact is that Judge Alito has never said that Congress cannot regulate machine guns. In fact, in his dissent in the Rybar case, Judge Alito actually said explicitly that Congress CAN regulate machine guns. Moreover, he set out a roadmap showing Congress how to do so. Moreover, Senator Schumer’s comments suggest that Judge Alito addressed machine gun regulation writ large. In fact, the Rybar case regarded only the purely intrastate possession of machine guns, a very narrow slice of machine gun-related activity. It had nothing to do with interstate transportation or sale or use of machine guns, any of which would present a very different case. As a federal prosecutor, Judge Alito prosecuted mob syndicates, drug crimes, and terrorists. Judge Alito knows what guns can do. Nothing in Judge Alito’s record suggests a personal hostility to firearm regulation. Judge Alito’s point in his Rybar dissent was that if Congress wants to do regulate the intrastate possession of a firearm, it must comply with the Supreme Court’s recent decision in US v. Lopez, in which the Court had struck down a nearly identical statute that regulated the intrastate possession of a firearm in a school zone. This shows Judge Alito’s abiding respect for precedent. Schumer: “He said, for instance, that a 10-year old girl could be stripped searched even though the warrant did not call for her to be strip searched.” Correction: This utterly misrepresents Judge Alito’s dissent in Doe v. Groody. The issue over which the judges on the panel disagreed was precisely whether the search warrant did authorize the search of other persons' in the drug dealer's house. In Judge Alito's view, the search warrant incorporated the attached affidavit, which had been provided to the magistrate judge who issued the warrant, which quite clearly sought permission to search others in the house. Judge Alito made the point, which is legally correct, that a warrant should be read in a common-sense manner. Moreover, the legal question in the case was whether the police officers should be personally liable for money damages for their conduct. To answer that question, the court had to determine whether a reasonable officer in their position would have understood the warrant to approve the search. In Judge Alito’s view, given the affidavit, a reasonable police officer could reach that conclusion. Judge Alito also expressed distaste for the search, but also frustration with the fact that drug dealers often misuse children in plying their criminal trade. Schumer: “He has said, for instance, in the past, that one man, one vote. Something that's accepted as a [tenet] of our democracy that you should not have one legislative district with 20,000 people and one with 300,000 people. He said that was ok.” Correction: This is profoundly and astoundingly inaccurate. Judge Alito has never expressed disagreement with the principle of “one-person, one-vote.” In fact, it has been reported that he has told Senators that he considers it a bedrock principle of Constitutional law. Moreover, nothing Judge Alito has said or written anywhere suggests he would ever countenance such a grotesquely disproportionate apportionment. Schumer: “In a speech before the Federalist Society in 2000 he said he believed in the unitary executive. That means the executive has all the power. It means you couldn't have an F.T.C. It means you couldn't have a 9/11 commission. It means that in a time of war, relevant to today, that you could have warrants issued so you could go into someone's home without going to a judge.” Correction: Nothing in Judge Alito's jurisprudence substantiates the allegation that he believes in, or would vote for, any of these outcomes. Judge Alito has repeatedly ruled against Executive interests where the law and facts supported that outcome. Moreover, Judge Alito has expressed a healthy respect for the separation of powers, which includes the court’s role as a bulwark against over-reaching by the President or Congress. Senator Leahy: On the Face the Nation, Senator Leahy made the following statement: "He wrote when he was pushing for jobs in the Reagan Administration a memo which is still being used in which he basically said that a President can sign a law but ignore parts of the law." Correction: As a lawyer working in the Reagan Administration, Alito was instructed to write a memo suggesting some vehicles for expanding the use of Presidential signing statements. He wrote this memo in February 1986, shortly after joining the Office of Legal Counsel. Contemporaneous documents show that the strategy he was asked to help implement was settled upon by Department leadership in 1985, before Alito was ever involved. Moreover, Presidents have long used such signing statements have a long pedigree, going back to Presidents Jackson and Monroe. Many Presidents have used these to indicate disagreement with certain provisions of the law, and to indicate where in the President's view, he retains the authority to engage in certain activities. President Clinton made frequent use of this device, both to indicate how he would interpret the law, and to note his separate executive authority under Article II of the Constitution. The President is a partner in the legislative process - as the Supreme Court has recognized, his signature (or a veto override) is required to effect a law. The President, therefore, has a right to say what he thinks a bill he is signing means.

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