While on the subject of SCOTUS nominees, I’ve frankly been a
bit surprised, given so much focus on the newest nom’s nickname (“Scalito”) that more political hay hasn’t been made of his 20-year friendship
with another Jersey boy, Homeland Security Chief Michael Chertoff.
Back in 1987, the same year that Trenton native Scalia was appointed associate justice of the Supreme Court, President
Reagan named fellow Trenton native
Sam Alito – then Ed Meese’s deputy assistant – to be U.S. Attorney for the District
of New Jersey. Among his first acts on the job was to recruit as his First
Assistant an up-and-coming young prosecutor (and Elizabeth
native) by the name of Michael Chertoff away from the position he held across
the Hudson River, in the office of the then-U.S.
Attorney for the Southern District of New York -- Rudolph Giuliani.
Three years later, President George H.W. Bush gave a boost
to both Alito’s and Chertoff’s careers, naming Alito to the Third Circuit,
where he has served to this day, and Chertoff to be his successor as U.S.
Attorney for New Jersey.
Chertoff would later be tapped by the younger President Bush
to serve under John Ashcroft, before he was once again reunited with Alito in 2003
by being named, himself, to the Third Circuit. Over the proceeding two years,
until Chertoff was named to the Homeland Security post, the two seem to have
served on the same panels an unusually large number of times (I’ve never been
entirely clear on how panels are selected, but in searching the decisions,
their names are on the same cases at a frequency far above what pure chance
would seem to predict.)
They nearly always ruled together, which perhaps isn’t so
remarkable as one of the notable cases where they disagreed. In 2004’s Doe v.
Groody, Chertoff wrote the majority opinion that held the strip search of a
10-year-old and her mother, in a drug case where police had a warrant only to
search a man and his home, constituted a violation of the Fourth Amendment.
Alito's dissent held that, since the girl and her mom were “in”
the house to be searched, any part of their persons was also fair game.
Now, obviously, if having a personal history with members of
the nominating administration were sufficient grounds for exclusion, there
isn’t a judge out there who would pass the test. But as cases reach the high
court – as they almost certainly will, eventually – challenging the Patriot
Act, which Chertoff wrote, or the government’s handling of Hurricane Katrina,
which he had a big hand in bungling, is Sam Alito really the guy I want
deciding those matters?
As we say in the Garden State – foogeddabowdit.
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