Alito v. The Fourth Amendment

Not that it will matter to Schmittian conservertarians or people of the Althouse “all that matters is whether he will restrict individual rights competently” school, but a systematic Knight-Ridder study (via FL) finds that Alito somehow virtually never finds a Fourth Amendment claim that he likes:

As the Bush administration defends its right to eavesdrop on Americans without court permission, a look at Supreme Court nominee Samuel Alito’s record on search and seizure matters reveals how few limits he has imposed on the government’s power to gather evidence.

A Knight Ridder analysis of more than 300 written opinions by Alito, for example, reveals that he has almost never found a government search unconstitutional and that he has argued to relax warrant requirements and to broaden the kinds of searches that warrants permit.

There are a few exceptional cases in Alito’s record, notably a 1998 ruling in which he rejected the search of a black driver’s car for a handgun because police practically admitted that race influenced their decision to stop the man. But overall his record in this area has produced near uniform results in favor of government authority.

His work in this area has frequently drawn sharp disagreement from his colleagues on the 3rd Circuit Court of Appeals in Philadelphia, one of whom accused him of approving an “Orwellian” invasion of privacy in one case.

[…]

Alito also has argued that the scope of warrants should be interpreted broadly, sometimes beyond what the warrant says. In this area of law, the rule has long been: If it’s in the warrant it’s fair game, if it isn’t, it’s not.

Still, in one case, Alito deferred to government authorities who conducted a broad search of a wholesale distributor’s premises with a warrant that didn’t specify what police were looking for or how it tied into the alleged criminal activity. The prohibition against such “general” warrants is the foundation of the constitutional limit on search and seizure. But Alito said the warrant wasn’t general but was only “too broad” and therefore legal under a Supreme Court exception to warrant requirements.

A dissent in the case noted that the warrant was “so lacking in particularity that no reasonably well-trained officer could execute it in good faith.” It also said Alito’s reasoning allowed the high court’s exception to “swallow” the Constitution’s rule against general warrants.

Shocking–who could have guessed that Alito was a hyper-statist reactionary? He’s so soft-spoken! And he will write his opinions gutting the Fourth Amendment in a very non-acerbic manner, and that’s what matters!

And there’s no reason for the Democrats not to oppose him strongly. Gary Farber points us to the following Wall Street Journal poll:

Almost equal thirds of all adults believe that Judge Alito should be confirmed (34%), should not be confirmed (31%) or say they aren’t sure (34%), according to the poll. A majority of Republicans (65% vs. 9%) favor his confirmation, the polls shows, while a plurality of Democrats (48% vs. 14%) oppose it, and Independents are split (34% for confirmation; 38% against).

However, nearly 70% of those surveyed in the online poll of 1,961 adults would oppose Judge Alito’s confirmation if they thought he would vote to make abortion illegal. That percentage rises among Democrats (86%) and Independents (74%), compared with 22% of Republicans. More than half of Republicans polled say they would support his confirmation if they thought he would vote to make abortion illegal, compared with 14% of Democrats.

So even now the public is sharply divided, and if the Democrats can make Alito’s unremitting hostility to abortion rights more widely known, his support will drop further. Filibustering Alito is the right thing to do on the merits, and there’s no reason to believe it would hurt the Dems politically.