# Alito confirmation hearing **URL:** \ **Category:** Great Debates\ **Created:** [January 9, 2006, 6:25pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187 "2006-01-09T18:25:50Z")\ **Posts on this page:** 20\ **Page:** 14
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [January 16, 2006, 11:27pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/261 "2006-01-16T23:27:15Z")
> [@Evil Captor](#): > > C’mon, Liberal, you aren’t dumb enough to accept all the mealymouthing that judges and cops do when they’re doing something wrong at face value, do you? Think “crocodile tears.” Wrong at face value? Are you saying that the judges and cops were raising their kids in crack houses? ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 16, 2006, 11:29pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/262 "2006-01-16T23:29:20Z")
> [@AFAIKnow](#): > > So, a drug dealer knowing this could keep a child within reach at all times holding his stash and there isn’t a thing anyone could do about it without a hightened search warrant naming said child. If you were in charge, and I were a drug dealer, I know I would do just that. Too bad you would give me a reason to subject a child to such. You must be proud. :rolleyes: There’s gotta be a better remedy for this than strip-searching minors without a warrant. Like, strip-searching minors WITH a warrant! ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [January 16, 2006, 11:34pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/263 "2006-01-16T23:34:11Z")
Um, you do know that cops get warrants all the time that allow them to search everyone on the premises, right? Happens every day. No one complains. If the cop has a warrant, he can even search 10 year old girls, 90 year old grandmothers, 20 year old drug dealers, 45 year old basoonists. What matters is that he had a warrant for the search. And the cops don’t have to get a warrant that says, “You can search Bob Smith, social security number xxxyyyzzz.” They can get a warrant that says, “You can go to 2222 Main Street, Busytown, and search everyone there.” So Judge Alito is a fascist because he didn’t try to overturn this law? \ I’ve got to say, the characterization of Alito’s ruling in this particular case is the worst smearing and misrepresentation of someone’s record I’ve seen since the Swift Boaters smeared Kerry. ---
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [January 16, 2006, 11:34pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/264 "2006-01-16T23:34:28Z")
> [@Evil Captor](#): > > There’s gotta be a better remedy for this than strip-searching minors without a warrant. Like, strip-searching minors WITH a warrant! TADA! And that is how we currently play the game kiddies. I am glad you finally see the light. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 17, 2006, 12:17am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/265 "2006-01-17T00:17:26Z")
> [@Dewey Cheatem Undhow](#): > > OK, so at least you agree that it is black-letter law that a target of a search does not necesarily have to be specifically named in a warrant, so long as that person is adequately described in other terms (e.g., “persons on the premesis”). So tell me again why you’re upset that Alito not only failed to join the majority, but also didn’t write a stinging rebuke of what is longstanding, well-established, black-letter law? Because strip-searching minors is WRONG. MORALLY WRONG!!! I repeat: MORALLY WRONG!!! What part of MORALLY WRONG!!! don’t you get? (It’s not like I haven’t said this a dozen times in this thread.) > [@](#): > > Well, no. You are (deliberately?) misunderstanding the standard here. A cop still needs a warrant to perform a search. Judicial oversight is still a necessary component. Yeah, one of those phony-baloney warrants that says, “Anyone on the premises” or “Anyone near the premises” or “Anyone who looks at me funny.” How about a warrant saying, “Minors on the premises at 123 Crack Street whom we suspect are drug mules.” At least the judge would have some idea what was up before he signed the warrant. > [@](#): > > Where “reasonable expectations” comes into play is when the cop gets sued over some defect in the warrant. The question is whether the cop reasonably believed that the warrant authorized a particular search. And certainly a cop who failed to get a warrant entirely could claim no such reasonable belief. Y’know, there’s no way I’m going to call strip-searching a minor without a warrant specifying such a search “reasonable.” 'Cause it’s not. Are you just OK with strip-searching minors, think there should be a whole lot more of it, or what? You’ve asked me repeatedly about my beliefs on the matter, what are yours? > [@](#): > > So now you’re faulting Alito for what he _didn’t_ write? Are you saying that any judge who fails to vociferously adopt your blinkered view of the fourth amendment with respect to minors, and who fails to write _ober dicta_ about it in every fourth amendment case that comes before them, is unfit for the Supreme Court? What Alito did here is just PART of why he’s unfit to serve on the Court. He’s got a whole history of this kind of shit. > [@](#): > > Cite? Really, you’re just venting here. This “argument” (which, as best as I can surmise, is “Judge Alito is eeeeeeeeevil”) is pathetic, more suited to the Pit than to GD. There have been plenty of cites to the effect that Alito’s record shows that he is unsympathetic to minorities, women, etc. It’s not an unreasonable reach to assume that such lack of sympathy informed Alito’s judgement. It’s a guess, I admitted when I said it, but hardly one based on nothing. I am really surprised that you are unaware of these controversies. > [@](#): > > Can you show me where my logic is faulty? Somehow I doubt it. If X is harder to legally search, X becomes a more attractive hiding place. Your logic is faulty because you assume, or rather would like us to assume, that a warrantless search of minors is the only remedy here. > [@](#): > > And…why? Why do minors get this stricter warrant process in your dreamworld? Because they’re minors and hence generally should be treated less harshly than adults? It’s a dreamworld where minors are not executed. A dreamworld where everybody understands that torture is wrong, invading countries under false pretence is wrong, and that the Civil Rights movement is not something we should be OPPOSING. Someday, it will be America, I hope. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 17, 2006, 12:23am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/266 "2006-01-17T00:23:48Z")
> [@AFAIKnow](#): > > TADA! And that is how we currently play the game kiddies. I am glad you finally see the light. Not really. As I have already said, when minors are to be searched, I would like the warrant to so specify. It was not the case in the Alito decision, it was one of those blanket, “Anybody living here” warrants. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 17, 2006, 12:23am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/267 "2006-01-17T00:23:45Z")
> [@Evil Captor](#): > > You missed a step here, Dewey … there’s no allegation that I’m aware of that mommy was a crack dealer … coulda been a customer or a … get this … innocent bystander, like her kid. Therefore, innocent mommy isn’t necessarily hiding crack in kids. Of course, in a crack house the crack dealer could take even an innocent bystander and say “hide this under your shirt and keep your mouth shut until the cops go, or I’ll fuck you and your mommy up.” But we don’t even need to posit that here. No, here I’d like to once again draw attention to your utter lack of reading comprehension. Had you bothered to glance through this (very short) case, you’d know that Jane Doe (the mother) was the spouse of John Doe (the crack dealer), and Mary Doe was their daughter. > [@Evil Captor](#): > > Do you seriously mean to suggest that I advocate that crack dealers should be allowed to hide drugs in kids? (Earth calling Dewey, Earth calling Dewey … ) You certainly want to create a legal scheme designed to foster precisely that result. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [January 17, 2006, 12:26am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/268 "2006-01-17T00:26:42Z")
Maybe I’m missing something here, but I don’t see why searching minors is wrong. If the cops bust into the house and search everyone there, why is it more wrong to search the minors than it is to search the adults? Yeah, I know I’m a cryto-fascist, but I just don’t see what good it would do to have a warrant to search a house and not have the ability to search the people in the house. You do know that kids today use drugs from time to time, right? It isn’t like they wait until they’re 18 before they start smoking crack and engaging in the old ultraviolence. Certainly the cops need to get a warrant to search a house, and the warrant needs to include the particular people and places that may be searched. “Everyone in the house” seems pretty reasonable, right? Should it always be “Everyone in the house except minors?” That doesn’t make much sense to me. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 17, 2006, 12:27am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/269 "2006-01-17T00:27:46Z")
> [@Evil Captor](#): > > Your logic is faulty because you assume, or rather would like us to assume, that a warrantless search of minors is the only remedy here. Who said anything about warrantless? I want there to be a warrant – a warrant that is currently acceptable under existing fourth amendment jurisprudence. As for the rest – hell, having given you enough rope, I’ll just enjoy watching you swing. Nothing I can say could possible discredit you any more than your own words. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [January 17, 2006, 12:29am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/270 "2006-01-17T00:29:08Z")
Er, “possibly.” ---
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [January 17, 2006, 12:50am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/271 "2006-01-17T00:50:48Z")
> [@Evil Captor](#): > > Not really. As I have already said, when minors are to be searched, I would like the warrant to so specify. It was not the case in the Alito decision, it was one of those blanket, “Anybody living here” warrants. And under the law “anybody” includes minors. Do you get it now? Once the police get a warrant which states “anybody” it is understood by everyone but you that the warrant allows the search of anybody. That is SOP. So I will go back to my first statement. If your bitch is with the current law perhaps you should open up a new thread. Your current hand wringing and attempt to accuse Alito of “immorally” following what the law says is getting tedious and shrill. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [January 17, 2006, 6:57am UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/272 "2006-01-17T06:57:44Z")
Can someone explain to a non-lawyer noob like me, if Alito’s position on _Groody_ was so freakin’ brilliant and proper, why was he writing for the dissenting minority (read: losing side)? ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [January 17, 2006, 1:32pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/273 "2006-01-17T13:32:32Z")
There’s nothing about being in the majority that ensures either brilliance or propriety. I’m wondering, though, whether Evil Captor and I have a different mental image of how the search of the girl was conducted. I had imagined a gentle, delicate procedure designed to assuage any fears she might have, even making it appear to her as a sort of game. Certainly nothing to scar her emotionally. Evil, on the other hand, seems to have in mind a no-holds-barred take-her-to-the-ground wrestling match, in which her clothes were ripped from her body while she screamed. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [January 17, 2006, 1:40pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/274 "2006-01-17T13:40:39Z")
> [@rjung](#): > > Can someone explain to a non-lawyer noob like me, if Alito’s position on _Groody_ was so freakin’ brilliant and proper, why was he writing for the dissenting minority (read: losing side)? I’ll keep this question in mind, next time you start bitching about a Supreme Court decision you think ill-founded. I’ll point out your considered opinion here that a court majority is always right. Check out the awful _Plessy_ majority decision sometime, and then read Justice Harlan’s dissent. Tell me then which opinion was more wise. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [January 17, 2006, 1:48pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/275 "2006-01-17T13:48:37Z")
> [@Mr. Moto](#): > > I’ll keep this question in mind, next time you start bitching about a Supreme Court decision you think ill-founded. I’ll point out your considered opinion here that a court majority is always right. > > Check out the awful _Plessy_ majority decision sometime, and then read Justice Harlan’s dissent. Tell me then which opinion was more wise. Isn’t it ironic that this thread has morphed from “tyranny of the majority” to “the majority is always right”. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [January 17, 2006, 2:08pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/276 "2006-01-17T14:08:52Z")
Indeed. I’ll just sum up the thinking of **rjung** here, for the unitiated. When a conservative joins a majority opinion, he is outside of the mainstream, and deeply wrong. When a conservative dissents from a majority opinion, he is outside of the mainstream, and deeply wrong. When a liberal joins a majority opinion, that should be considered a model of thoughtful and sensitive jurisprudence. When a liberal dissents, that should be considered a model of thoughtful and sensitive jurisprudence. It all adds up very clearly, in **rjungs** little world. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 17, 2006, 4:06pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/277 "2006-01-17T16:06:29Z")
> [@rjung](#): > > Can someone explain to a non-lawyer noob like me, if Alito’s position on _Groody_ was so freakin’ brilliant and proper, why was he writing for the dissenting minority (read: losing side)? It’s a 3 judge panel. Are you saying he should have always been in the majority view on every case he looked at during the 15 years he served on the bench? Is that what you’re saying? Are you saying that there can’t be two reasonable interpreations of the same statute or constitutional provision? The fact that he was in the minority is irrelevant. You really need to read the actual case, and quit focusing on those one-liner sound bites and phony statistical studies you read in those blogs. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [January 17, 2006, 4:10pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/278 "2006-01-17T16:10:38Z")
> [@rjung](#): > > Can someone explain to a non-lawyer noob like me, if Alito’s position on _Groody_ was so freakin’ brilliant and proper, why was he writing for the dissenting minority (read: losing side)? Since you’re not likely to get an honest, non-insulting answer from anyone else, I’ll give it a shot. There were two major issues in _Groody_: whether the warrant authorized the search of the woman and girl and whether the officers acted reasonably in searching beyond the scope of the warrant. As to the first issue, the majority found that the warrant did not authorize the search of the woman and girl. It’s clear that the warrant did not specifically authorize the search, there was no language allowing it in the warrant. There was, however, language in the attached affidavit, that would have allowed the search. Now, the status of the affidavit as it relates to the actual warrant is the issue. The majority pointed out that there are generally three times the affidavit can influence the wording in the warrant. One, if it is incorporated by reference with clear, express language in the warrant. That wasn’t the case here. Two, if the warrant contains an ambiguity or clerical error and the affidavit can clear up the issue. The majority found that that wasn’t the case here either. Their feeling was that the affidavit acts as a request for what the officers want to search, and the warrant is what the magistrate actually allows. Here, the affidavit requested to search all persons on the premises, but the warrant did not specifically allow it to, so the search is bound by the terms of the warrant. Third, if the language in the warrant is overbroad (allowed the police too much latitude in listing the particulars of what or who they were searching or what they were searching for). In these cases, the affidavit, if it contains much more particulars than the wording on the warrant, can act as a limitation on the overbreadth of the warrant. Since the affidavit in this case did not limit, but rather expanded the allowable search, this did not apply. The majority found that, given this analysis, the affidavit was not allowed to be incorporated into the warrant, and the police were only authorized to do what the warrant specifically authorized, and it did not authorize the search of the woman and child. Alito’s position on this first issue was that the search warrant should be read in a common sense fashion, which would include the part of the affidavit that would allow the search of people on the premises. He felt that since the officers had prepared both the affidavit and the warrant, and that the officers had sought the power to search all the people present, that the warrant was clearly intended to allow the search. Alito believed that the common sense reading of the warrant and how it was obtained, clearly indicated that the magistrate intended to authorize the officers to search the people present. Alito also found that the affidavit spoke to the issue of probable cause, and that, since the affidavit listed specific reasons why there was probable cause to search the people present, it was incorporated as probable cause for the warrant. Alito found the majority’s opinion to be too formalistic and too technical of a reading and that the issue of whether an affidavit is incorporated into the warrant should be read more broadly. The second issue to resolve was, if the search was not authorized by the warrant, do the officers still have qualified immunity (which would allow them to escape legal liability.) The majority, quoting a Supreme Court case _Groh_, stated: "a warrant may be so facially deficient – i.e., in failing to particularize the place to be searched or the things to be seized – that the executing officers cannot reasonably presume it to be valid.’” The majority found that the warrant, by not allowing the search of the people present, was so facially deficient that it did not allow the officers to rely upon it and thus have qualified immunity. Alito thought that, even if the warrant did not authorize the search, that they were acting reasonably, and in good faith, and thus should have had qualified immunity. Personally, I see this as a case where the police fucked up by not putting the proper language in the warrant (a warrant they prepared themselves), and, thus the search exceeded the clear language of the warrant. However, I agree with Alito that there is absolutely no evidence the police officers were not acting reasonably, in fact there is evidence that they honestly, and reasonably to my mind, thought the warrant authorized the search of all people present. So I would concur in part and dissent in part. I am, however, concerned about Alito’s willingness to go beyond the clear language of the warrant to expand the authorization of the search. It is an indication, a very minor one of course, that he may not be the strict textualist, judicial restraint kind of guy that he makes himself out to be. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 17, 2006, 4:30pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/279 "2006-01-17T16:30:16Z")
> [@Hamlet](#): > > Since you’re not likely to get an honest, non-insulting answer from anyone else, I’ll give it a shot. Thanks for the further clarification as a legal expert. But seriously, \*\*Dewey \*\*tried several times already to give a clear, legal analysis to **rjung**. Yours might have been a bit more in depth, but I don’t think it’s fair to say \*\*rjung \*\*wouldn’t get an honest, non-insulting answer when he dismissed the honest answers given earlier claiming he was “too honest” to be a lawyer. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [January 17, 2006, 5:28pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/280 "2006-01-17T17:28:25Z")
> [@Hamlet](#): > > The majority pointed out that there are generally three times the affidavit can influence the wording in the warrant. One, if it is incorporated by reference with clear, express language in the warrant. That wasn’t the case here. Two, if the warrant contains an ambiguity or clerical error and the affidavit can clear up the issue. The majority found that that wasn’t the case here either. Their feeling was that the affidavit acts as a request for what the officers want to search, and the warrant is what the magistrate actually allows. Here, the affidavit requested to search all persons on the premises, but the warrant did not specifically allow it to, so the search is bound by the terms of the warrant. It should be noted that the warrant did incorporate the affidavit in two other sections: “PROBABLE CAUSE BELIEF IS BASED ON THE FOLLOWING ACTS AND CIRCUMSTANCES” and “DATE OF VIOLATIONS”. Apparently, the officers that filled out the warrant application felt that those incorporations were sufficient to justify inclusion of the affidavit for all other sections. That, and there being insufficient room in the section listing the persons and premises to be searched **could** have been seen as a “clerical error” but the majority didn’t buy that either. [Previous page](https://boards.straightdope.com/t/alito-confirmation-hearing/339187.md?page=13) [Next page](https://boards.straightdope.com/t/alito-confirmation-hearing/339187.md?page=15)