Armando examines what weight should be given to Alito's memos from his White House counsel days. Here is Sen. Leahy's description of Alito's memo on how to argue that the Attorney General should have absolute immunity for warrantless wiretapping, even should it turn out to be illegal:

DESCRIPTION OF THE JUNE 12, 1985, MEMO from Samuel Alito to the Solicitor General re: Forsyth v. Kleindienst (i.e. Mitchell v. Forsyth) (DOJ3-00285-DOJ3-00291) --

Mr. Alito later wrote the brief in Mitchell v. Forsyth arguing that the Attorney General should have qualified and absolute immunity for civil damages stemming from the warrantless authorization of wiretaps. Ultimately, the court ruled that the Attorney General was qualifiedly immune (because the decision was made before the Supreme Court clarified that such warrantless taps were unconstitutional), but rejected the arguments for absolute immunity.

In this memo, Samuel Alito takes an approach mirroring what he did in Thornburgh by embracing the principle of absolute immunity and suggesting tactical reasons for avoiding taking it head on. He argues that the Administration should seek cert only on the appealability of the qualified immunity claim, not on absolute immunity, but for tactical reasons: "I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here." He lays out why this is not a good case for absolute immunity, including the fact that they would not have Justice Rehnquist's vote and that it involves a controversial official from a controversial era.

In this memo Mr. Alito makes clear his own personal view in this matter, declaring that he, himself, has no doubt the Attorney General should have the immunity.

I think Judge Alito and John Yoo are cut from the same cloth. The thought of John Yoo on a court is frightening. Happily, he's too controversial to get the nod. But how is Alito any different?