Five issues foes will try to use to torpedo Alito

Confirmation looks likely unless Democrats resort to a filibuster

After a round of opening statements on Monday, the formal interrogation of Samuel Alito by the Senate Judiciary Committee begins Tuesday at 9:30 a.m.

Barring a disastrous performance in front of the committee, Alito will likely have at least the 51 votes he�ll need for Senate confirmation as justice of the Supreme Court to replace Sandra Day O�Connor. Even some of Alito�s opponents concede that the opposition will likely need to resort to a filibuster if they are to keep him off the court.

Are there analogous issues that Alito�s enemies will use to try to defeat his confirmation? Here are five:

1) Alito's application for the job of deputy assistant attorney general in the Justice Department, submitted on Nov. 18, 1985.

Even though that job application was written more than 20 years ago, Alito�s adversaries argue it is a crucially important window into his current thinking.

In it, Alito, then working in the Solicitor General�s office preparing cases for argument for the Supreme Court, said, �I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not allowed and that the Constitution does not protect a right to an abortion.�

These positions, he said, are ones �in which I personally believe very strongly.�

2) The strip search of a mother and daughter.
In a 2004 case, called Doe v. Groody, Alito dissented from a ruling by then-Judge Michael Chertoff and Judge Thomas Ambro that four police officers should not have immunity from a damages lawsuit after a female officer conducted a physical search of a suspected methamphetamine dealer�s wife and daughter at the suspect�s house.

The family filed suit claiming the wife and daughter had been illegally searched because the search warrant only specified the suspected meth dealer, not his wife and daughter.

Alito said �a reasonable officer certainly could have believed� that the search was permissible, because the affidavit accompanying the search warrant specified searching everyone on the premises. The officers �did not exhibit incompetence or a willingness to flout the law.�

�Judge Alito says it is OK for the police to strip search a mother and her ten-year old daughter even though they�re not named in the search warrant�. That�s one I think people can relate to,� said Mincberg.

3) Shooting a boy in the back.
While serving in the Justice Department in 1984, Alito wrote a memo suggesting the Reagan administration not take part in a Supreme Court case concerning the constitutionality of Tennessee�s fleeing felon statute which permitted the use of deadly force to prevent the escape of a felony suspect.

The case involved a 15-year old boy who broke into a house at night. Police arrived at the scene and ordered the burglar to halt. When he didn�t, an officer shot him to prevent his escape.

Alito said the issue was one better suited for legislatures than for judges to decide, arguing that is �no single principle that can be used to judge when it is justified to use deadly force to stop a fleeing suspect. Instead, all such rules are based upon difficult moral and philosophical choices and a balancing of values that is peculiarly suited for legislative rather than judicial resolution.�

4) No federal ban on machine gun ownership?
In a 1996 case called United States v. Rybar, Alito dissented from two of his colleagues who upheld a federal law banning possession of machine guns.

Relying on the Lopez decision handed down by the Supreme Court one year earlier, Alito said the law �might be sustainable� if Congress found that �purely intrastate possession of machine guns has a substantial effect on interstate commerce.� But, he said, Congress hadn�t done so.

The Supreme Court�s 1995 Lopez decision had emphasized that the Constitution only gives Congress the power to regulate interstate commerce, not the power to regulate all the things that go on within a state.

5) Domestic eavesdropping by the federal government
In 1984, while serving in the Justice Department, Alito wrote a memo supporting the position held by the Carter administration and by the Reagan administration that former Attorney General John Mitchell should have immunity from lawsuits stemming from domestic national security wiretapping that he ordered in 1970.

The Supreme Court later rejected this position.