Toobin falsely claimed Alito was in majority when he voted to uphold search of 10-year-old girl

Written by Raphael Schweber-Koren & Andrew Seifter

Published

CNN legal analyst Jeffrey Toobin falsely claimed that Supreme Court nominee Samuel A. Alito Jr. was in the majority on a three-judge panel when he said that the physical and visual search of a 10-year-old girl and her mother was legal. In fact, Alito dissented from the majority opinion, which ruled that the search was illegal.


During CNN's live coverage of the confirmation hearings of Supreme Court nominee Samuel A. Alito Jr., CNN legal analyst Jeffrey Toobin falsely claimed that “in the case about the 10-year-old girl, he [Alito] was in the majority” when he said that the physical and visual search of the girl was legal. Toobin continued: “There was another judge who was with him, there was a judge who dissented -- it was actually Michael Chertoff, now the Secretary of Homeland Security.” In fact, in the case, Doe v. Groody (2003) -- in which the girl and her mother had sued Pennsylvania state and county officials to challenge the legality of a physical search conducted on the two during the execution of a search warrant in their house -- the 3rd U.S. Circuit Court of Appeals majority, in an opinion written by Chertoff, ruled that the search of the girl and her mother went beyond what the search warrant permitted, in violation of the Fourth Amendment; Alito dissented.

From CNN's January 10 coverage of the Alito hearings:

JEFF GREENFIELD (CNN senior analyst): They're [Senate Democrats] attempting to say there's a human interest, visceral problem, with letting the government go unchecked.

TOOBIN: And the problem with that is you're questioning a witness who knows the facts of those cases better than the questioners do. And as he pointed out, on the case about the 10-year-old girl, he was in the majority. There was another judge who was with him, there was a judge who dissented -- it was actually Michael Chertoff, now the secretary of Homeland Security -- but it's tough to be outraged about something when other judges agreed with Judge Alito, and, you know, to get people to vote against him -- much less filibuster -- based on what are close judgment calls.

Toobin was also wrong in asserting that Alito had said in responding to questions about the case that he was in the majority. In fact, Alito noted during the hearings that he disagreed with the “majority” in the case. From a January 10 exchange between Alito and Sen. Patrick Leahy (D-VT) during Alito's Senate confirmation hearing:

LEAHY: Doe, the strip-search case of a 10-year-old girl, the officers didn't ask for permission to search anybody beyond the man they were looking for. In fact, the magistrate didn't give a search warrant for anybody else. But you went beyond that. You said that they were justified in strip-searching this 10-year-old and the mother. You went beyond the four corners of the search warrant the magistrate gave. And one of your members of the 3rd Circuit, Judge Chertoff, who is now the head of Homeland Security and a former prosecutor, criticized your reasoning. He said that it would allow it to come dangerously close to displacing the critical role of the independent magistrate. Do you continue to hold the position you took in your opinion, or do you now agree with the majority -- they're right and you're wrong?

ALITO: Well, Senator, I haven't had occasion to think that what I said in that case was correct. But let me just explain what was going on there.

LEAHY: Certainly.

ALITO: The issue there was whether -- the first issue was whether the warrant authorized the search of people who were on the premises, and that was the disagreement between me and the majority. And it was a rather technical issue about whether the affidavit that was submitted by the police officers was properly incorporated into the warrant for the purposes of saying who could be searched. And I thought that it was.