November 17, 2005
MEMORANDUM
TO: JCN State Leaders and Interested Parties
FROM: Wendy E. Long, Counsel, Judicial Confirmation Network
Gary Marx, Executive Director, Judicial Confirmation Network
RE: Liberal Groups' Attack Ad on Judge Alito
As many of you are aware, a coalition of far-Left groups led by People for the American Way and Alliance for Justice today launched their threatened attack campaign against Judge Alito. In the advertisement now airing around the nation, these extremist liberal groups - true to their word that they will use any tactic to bring down Judge Alito - blatantly misrepresent a case called Doe v. Groody, claiming that Judge Alito "approved" the "strip search of a 10 year old girl" and "pushed to narrow the Fourth Amendment's protection against unreasonable search and seizure."
These statements are not only false, but they are sure to backfire on liberals and any elected official who aligns himself with them. The ad released today is reminiscent of the attack ad on Chief Justice Roberts claiming that he supported abortion clinic bombers. The current ad is equally false.
First, Judge Alito did not "approve" any search. The issue in the case was whether the police officers and government entities involved in the narcotics investigation and search were entitled to "qualified immunity" when the drug suspect - called "John Doe" in the court papers - sued them for money damages. Under the law, the officers and governmental entities are entitled to qualified immunity if the officers reasonably believed that the search they were conducting was lawful. The legal question came down to a technical ruling on how a search warrant and an attached affidavit should be read together. Attached to the warrant was an affidavit from the police, noting the necessity of searching the suspect's home and all the persons inside, because drug dealers frequently hide drugs on other people - including children. As Judge Alito noted, he shared the other judges' "visceral dislike of the intrusive search of John Doe's young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution."
Second, the facts are quite different than the liberal extremists would like you to believe. The police made sure to have a female officer available in case there were females to be searched. The female officer brought the drug suspect's wife and his 10 year-old daughter to a private upstairs bathroom and asked them to turn out their pockets and remove their clothes. She visually - not manually - inspected the mother and daughter. Notably, the other two judges on the panel with Judge Alito never used the term "strip search" (except in summarizing the lawsuit's claims).
Third, not only are the technical legal issues in Doe v. Groody completely misrepresented in the ad, but the larger issue is also turned on its head. The liberal coalition running the attack ad wants Americans to think that Judge Alito was somehow in favor of humiliating an innocent 10 year-old girl. Apparently, the liberals contend that children cannot be searched under the Constitution. This would amount to a "get out of jail free" card for drug dealers who use young children to stash drugs.
The Law Enforcement Alliance of America today said the liberal attack ad undermines law enforcement's ability to protect children from being used as pawns by drug dealers, stating: "these shameless attacks on law enforcement officers and Judge Alito would have young children used as drug mules." The position taken by Judge Alito's opponents would simply give drug dealers a greater incentive to abuse children in this way. One does not know if there are drugs on the child until she is searched - in this case, the daughter of a suspected drug dealer, in the drug dealer's home, was searched in a private bathroom by a female police officer, in the presence of the child's mother.
The Associated Press reports that just yesterday, in Philadelphia, a kindergarten teacher found eight bags of heroin in a five year-old student's pocket. The police say that the mother could be charged, and a school spokesman says they are shocked and outraged that a parent could place a child in such danger. But the left-wing liberal pressure groups out to destroy Judge Alito would trample the interests and safety of children in their mad rush to attack the Judge on some bogus Fourth Amendment ground.
If liberals want to take the policy position that these searches are unacceptable, then they need to explain why they want to give drug dealers an incentive to involve young children in their crimes. If police cannot search children whom they reasonably believe are covered by valid warrant, then drug dealers would logically open up day care centers. In their rush to attack Judge Alito, these leftist groups have endorsed a policy that would result in more abuse of children, not less.
Please ask your Senators to publicly reject both the false attack ad on Judge Alito and the extreme and ill-advised policy position on searches of children that People for the American Way, Alliance for Justice, and the Leadership Conference on Civil Rights are advancing with this ad.
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