Black Panther case shifts a debate on Alito

WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr., who has been accused by opponents of being hostile to civil rights claims, once urged the Reagan administration not to try to block a civil rights suit by the Black Panther Party against former government officials who had spied on the group, according to records released yesterday.

The nominee's supporters said a 1981 memo by Alito, written while he was a Justice Department lawyer, cuts against his portrayal by left-wing groups as an ideologue who sided against civil rights suits whenever he has had the opportunity. Opponents, however, said the memo doesn't change their view of the nominee, given his overall record on civil rights matters.

The case stemmed from a secret government program to disrupt dissident groups in the 1960s. When a 1976 Senate investigation disclosed details of the program, the Black Panther Party, a militant civil rights organization, sued a group of current and former officials -- including three attorneys general, two CIA directors, and an FBI director -- alleging they violated the group's rights.

A district court judge threw out the Panthers' lawsuit on a technicality in 1980, but the following year an appeals court ruled that the case should go forward. All 15 government officials named as defendants, along with the FBI, the CIA, the Army, and two divisions of the Justice Department, urged the Reagan administration to ask the Supreme Court to dismiss the Panthers' case.

Alito disagreed. In his memo, Alito suggested that the administration should allow the case to go forward, and defend the government officials on the merits of the case, if need be, rather than take the dramatic step of going to the Supreme Court. ''In an ordinary case, we would probably not even consider appealing," Alito wrote. ''None of the legal issues presented by this case seems to warrant Supreme Court review."

Alito lost the argument, though, and the administration appealed. In 1982, without hearing arguments, the Supreme Court issued a three-sentence opinion against the Black Panthers that ended the case. Only Thurgood Marshall, the only African-American justice on the high court, thought the case should have gone forward, according to the brief opinion.

The Alito memo, one of 17 documents released yesterday by the National Archives from Alito's time in the Justice Department during the 1980s, opened a new front in the debate over the nominee's record on matters of civil rights.

Liberal groups have argued that Alito has been consistently hostile to civil rights issues -- from affirmative action programs to discrimination claims -- on the bench and as a Reagan administration lawyer. The judge's supporters reject that portrait as a caricature, and yesterday cited the Black Panthers memo as new evidence that Alito is not a knee-jerk enemy of civil rights.

''It's just one more example available from Judge Alito's papers and his opinions that demonstrate the intellectual dishonesty of the far-left groups' attacks on him," said White House spokesman Steve Schmidt.

Bruce Fein, who worked with Alito in the Reagan administration, said the memo ''discredits the idea that there is an underlying theme that Alito is out to get the civil rights community, and he'll utilize whatever technical issues he can to get them."

But Wade Henderson, head of the Leadership Conference on Civil Rights, said one memo in a case that the Supreme Court dismissed doesn't change Alito's overall record of hostility to the civil rights movement.

''A judge's record is about more than an individual memo or the outcome of a particular case," Henderson said. ''Alito's view on the Black Panther Party case doesn't make up for a career of ruling against plaintiffs in civil rights cases."

And Nan Aron, president of the liberal Alliance for Justice, said Alito's memo was merely a strategic argument about when to take the case to the Supreme Court and showed no sympathy to the Panthers' case.

Since his nomination, Alito's critics have pointed to several appeals court opinions in which he employed a more restrictive reading of civil rights laws than his colleagues. For example, Alito voted to dismiss the case of a woman who alleged she was passed over for promotion at a hotel because she was black, saying she had not presented enough evidence to justify a trial. Two colleagues disagreed.

And in a death penalty case, Alito rejected a convict's attempt to use statistical evidence that local prosecutors had systematically excluded blacks from juries. Two of Alito's colleagues backed the convict's appeal, relying on the statistics.

But Alito's defenders say the critics have distorted Alito's record by looking only at the outcomes of cases rather than his legal reasoning. They also noted that Alito voted in favor of other civil rights plaintiffs, including another case involving alleged racial bias in jury selection, and one involving the search of a car police stopped because its driver was black.

Yesterday's release of the Black Panthers memo renewed the dispute. Sean Rushton, executive director of the conservative Committee for Justice, said the memo is further evidence that Alito ''has no ax to grind against civil rights plaintiffs."

But Elliot Mincberg of the liberal People for the American Way, gave no ground: ''Can you find instances in which, every so often, he came out for a civil rights plaintiff? Yes. But in the vast majority of cases, those were easy, unanimous cases. In the harder split cases, where at least one judge agreed with the civil rights plaintiff, he was almost always against the side of civil rights."