Alito Urged Government Not to Appeal Black Panther Case

As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. urged the Reagan administration not to contest a lower court's ruling in favor of a Black Panther Party lawsuit against top government officials, according to documents released by the National Archives yesterday.

Alito, then an assistant to Solicitor General Rex E. Lee, wrote in November 1981 that the Supreme Court would probably not grant an appeal of a procedural ruling by the U.S. Court of Appeals for the D.C. Circuit. The ruling said that the Panthers should be allowed to continue their suit despite having refused to give the government certain documents and other information.

The Panthers were suing a long list of U.S. intelligence and law enforcement officials, including George H.W. Bush, who at the time was vice president but had served as director of central intelligence in the Ford administration. They alleged an illegal conspiracy to destroy the party and demanded $100 million in damages.

Alito acknowledged in his memo to Lee that "a decision to the contrary has something to recommend it," but noted that acquiescing in the D.C. Circuit's ruling would still leave the government with ample opportunity to win the case in the district court "after a few additional steps are completed."

As his memo pointed out, the then-31-year-old Alito's recommendation ran counter to the wishes of the FBI, CIA, Bureau of Alcohol, Tobacco and Firearms, and a long list of former high-ranking officials named in the suit.

Eventually, the Justice Department decided to appeal to the Supreme Court, which ruled in the government's favor and ordered the Black Panthers' suit dismissed.

The five-page memo was included in a 283-page batch of Alito-related Justice Department documents released by the Archives.

Most of the documents were memos written by others and routed to Alito, or copies of previously printed Supreme Court briefs.

In one memo, Alito argued that state laws calling for divestment from firms doing business in South Africa were not unconstitutional.

Alito, 55, is now a judge on the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia.

Senate Judiciary Committee hearings on his nomination are scheduled to begin Jan. 9.