Alito argued against Black Panther appeal

WASHINGTON -- U.S. Supreme Court nominee Samuel Alito, as a young Justice Department attorney, urged the agency not to appeal to the high court in a lawsuit by the militant Black Panther party, newly released documents show.

The department ultimately declined to follow Alito's recommendation, which went against the advice of three former attorneys general, the FBI, the CIA and the department's own civil division. Alito went on to help write the legal brief in the 1982 case, and the Supreme Court, voting 6-1, ordered the lawsuit dismissed.

The justices chose not to hear arguments in the case, instead issuing a one-paragraph order that summarily reversed an appeals court ruling favoring the Black Panthers.

The Black Panthers had sued more than 30 high-ranking government officials and were seeking $100 million in damages, contending the officials were part of a conspiracy to destroy the group. The politicians sued by the Panthers included George H.W. Bush, the current president's father, who was named in the case as a former director of the Central Intelligence Agency.

Among the people telling the Justice Department to appeal the case to the high court were former Attorneys General Griffin Bell, Edward Levi and John Mitchell, according to the Nov. 19, 1981, memorandum made public Wednesday.

Alito, an assistant in the solicitor general's office when he wrote the memo, argued against an appeal mainly for tactical reasons. He said that the legal questions were too narrow to interest the justices.

"None of the legal issues presented by this case seems to warrant Supreme Court review," Alito wrote. He added that "each of the issues could be decided once again in our favor after a few additional steps are completed" in a lower court.

Alito did acknowledge that the case might be worth bringing to the Supreme Court because of the high-profile people involved and the need to send a message "to prevent the harassment of present and former public officials through meritless litigation."

The memorandum was one of 17 released Wednesday by the National Archives in Washington.

The Bush administration has opposed releasing any of Alito's files from the solicitor general's office, which represents the U.S. before the Supreme Court, citing a need for confidentiality. While the memo on the Black Panther case was written while Alito worked for the solicitor general, it was released by the archives because it was in the files of a former Justice Department official who didn't work in that office.

Alito, nominated by President George W. Bush to replace retiring Justice Sandra Day O'Connor, is scheduled to undergo Senate confirmation hearings beginning Jan. 9.

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