January 8, 2006
The Providence Journal
HERE THEY GO again. Liberal extremist groups attacking federal Appeals Court Judge Samuel Alito nomination to the U.S. Supreme Court have made good on their threat to do "whatever it takes" to try to bring him down.
One recent tactic: running TV ads asserting that the judge had "approved" the "strip search" of a 10-year-old girl in a 2004 case involving a female officer's visual -- not physical -- search of a drug suspect's wife and daughter during a search of his house.
The magnitude of this distortion makes the attack ads on Chief Justice John Roberts -- the ones accusing him of supporting abortion-clinic bombers -- look tame by comparison. But the "strip-search" lie is going to backfire, just like the "abortion clinic bomber" lie.
The only question is how many politicians the ad's sponsors will pull over the cliff with them in the process. Democratic Party Chairman Howard Dean is parroting the ad.
Contrary to the ad's message, Judge Alito did not "approve" the underlying search, and the ruling at issue did not decide anyone's constitutional rights.
Most hard-working Americans will be shocked to learn that the case involved a lawsuit by an alleged drug dealer against the police and Pennsylvania narcotics agencies that had investigated him, asserting that his wife and daughter had been unconstitutionally searched.
That's right: The alleged drug dealer sued to collect taxpayer dollars, and news reports say he eventually collected "six figures" in the suit.
The legal issue in the case wasn't whether the mother and daughter's Fourth Amendment rights had been violated, but whether the police and drug agents reasonably believed that their search was authorized by the warrant that they had in hand.
In such cases, as Judge Alito observed, the U.S. Supreme Court has said that warrants must be given a "common-sense and realistic reading" rather than a hypertechnical, legalistic one.
The crux of the case was whether a reasonable police officer conducting the search would have known he was violating clearly established law -- not whether he was violating it. Attached to the search warrant that the magistrate had signed, (the officers had executed) an affidavit stating that they needed permission to "search all occupants of the residence and their belongings."
Judge Alito simply observed that reasonable law-enforcement officers might think they could search the drug suspect's wife and daughter when they were found in the house.
But here's the part that will really backfire on the Far Left extremists.
As Judge Alito observed, "It is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution."
The liberals are outraged by the search of a child and apparently think that it's clearly unconstitutional. But searches of children do not harm the children.
Just the opposite: They protect the children from being abused by drug dealers. So frantic are Judge Alito's detractors to bring him down, they are willing in the process to hand drug dealers a "get-out-of-jail-free" card for using children to stash drugs.
This is no hypothetical concern. Last month, the media reported that a Philadelphia kindergarten teacher found eight bags of heroin in a five year-old student's pocket -- apparently another case of parental-drug-dealer abuse. The Law Enforcement Alliance of America has said explicitly that the "shameless" liberal attack ad on Judge Alito "would have young children used as drug mules."
People for the American Way, the Alliance for Justice, and Howard Dean would give drug dealers a greater incentive to abuse children by making them pawns in their crimes. If police cannot search children whom they reasonably believe are covered by valid warrant, then drug dealers will rush to open up day care centers.
It will be interesting to see who, other than the unelected and the unelectable, supports this concept.
Wendy Long is legal counsel to the Judicial Confirmation Network, which is promoting Samuel Alito's elevation to the U.S. Supreme Court.
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