Alito’s Confirmation and the Authoritarian Presidency
January 17, 2006
One year ago, I watched Bush appoint a slew of executive-friendly legal counsel and predicted that in his second term, he would no longer bother violating the law but would instead seek to change it. (The New Law, November 18, 2004; Chertoff Indicative of More Legal Manipulations, January 20, 2005) The more I learn about Samuel Alito, the more certain I become that I was terrifyingly right.
Unless you’ve grabbed this paper hot off the presses, Alito will be on his way to the Senate by now, likely with fewer token “no” votes than John Roberts earned. During the Roberts hearing, Biden called the process a “kabuki dance,” and having now watched two of the proceedings in their entirety, I must agree. Alito’s attempts to talk circles around the Senators of the Judiciary Committee were successful with frustrating frequency, and the Senators’ comments were disappointingly (but unsurprisingly) verbose, rambling, and non-specific. Questions with multiple elements were issued whole as bulleted lists, which of course allowed Alito to gloss over the points he didn’t care to address. Questions asked of no one in particular, rhetorical points made for the cameras, and meaningless charts were the hallmarks of yet another round of play-to-the-folks-at-home political soapboxing.
This doesn’t make the formalities uninformative; it just makes the information extraction process ridiculously oblique. More can be gleaned from what Alito refuses to say than from what he actually says in response to questions. Senator Specter opened the proceedings with an inquiry into Alito’s position on the right to privacy, in which the right to an abortion is rooted, and Alito quickly and unequivocally asserted that it is protected by the Constitution. Specter wasted no time jumping into the political powderkeg of Roe v. Wade, questioning Alito abut his stance on stare decisis, the technical term for the doctrine that past judicial decisions should be followed in deciding future cases. Alito, unsurprisingly, blandly recited the standard platitudes about precedent establishing stability and constancy in the law, but he was disturbingly careful to emphasize former Chief Justice Rehnquist’s oft-quoted opinion that stare decisis is “not an inexorable command” every time the topic was raised.
He also played the advocacy card early on, but he stopped short of disavowing his 1985 statement that the Constitution does not protect the right to an abortion. His reasoning was identical to that of John Roberts: lawyers are advocates of their clients’ interests, often expressing views with which they might personally disagree. Alito claimed that because he was an advocate for the administration at the time, it should come as no surprise that his stated views neatly toed the party line. He refused to comment further, however, on the grounds that the issue might come up before the court.
When questioned on the issue of the Supreme Court’s role in checking the President’s power, he resorted to mealy-mouthed statements to the effect that no one is above the law. When pressed, he fell back on quotations from Justice Jackson’s concurring opinion in a 1952 Supreme Court case, which set forth three ways of categorizing Presidential actions. First, there are those actions the President takes which are backed by Congress; this is when the President’s power is at its zenith. Second, there are actions which are outside the scope of Congress’ prior consideration; in such a vacuum, Presidential power is only middlin’ strong. Finally, if the President acts against an explicit Congressional mandate, his power is at lowest ebb. Does this tell you anything about what Alito thinks of Presidential power? Me either.
This is not a small question! The latest authoritarian revelation from the Bush regime is the warrantless and completely unauthorized wiretapping of American citizens, a story broken by the New York Times last month. This is in direct opposition to the Foreign Intelligence Surveillance Act of 1978, but Attorney General Alberto Gonzales claims the “all necessary and proper force” language of the Authorization for Use of Military Force passed by Congress in the wake of the 9-11 attacks gives the President carte blanche to do as he damn well pleases when it comes to prosecuting the war on terror. (Uh, how do we reconcile that with the administration’s position that the war on terror is unending? Now all the President has to do is point and scream “Terrorist!” before he attaches the car battery to your nipples.) Of course, Alito actually has a perfectly valid reason to sidestep any questions specifically about FISA; it’s almost certain to come before the Supreme Court, and Alito, if confirmed, will have to enter an opinion.
But there is also the issue of the unitary executive theory, which stems from a very fine-grained reading of the Constitutional grant of Presidential power. The first sentence of Article II states, “The executive Power shall be vested in the President of the United States of America.” Simply put, the theory holds that executive power is indivisible, vested solely in the office of the President, because it is referred to as “the” executive power. This authority is apportioned out to several different organizations, like the military and the Environmental Protection Agency, but these organizations serve as arms of the executive. The upshot of this is twofold. Procedurally, it means no part of the executive branch may sue another part because this would be, in effect, the President suing himself. The substantive aspect of this theory, however, is that the President gets to define the scope of his own power, a decision which may not be reviewed by the judiciary. John Yoo, principal defender of this position and influential White House legal strategist, argued publicly less than a month ago that the President has the power to order a suspect’s child tortured in front of them if he so chooses-including crushing the child’s testicles.
Alito has also expressed the belief that the President’s signing statements declaring his understanding of a bill’s intent should be given as much deference as the statements of Congress contained in the bill. In signing the McCain torture ban into effect, for instance, the President issued a signing statement that completely eviscerated the bill by exempting the Presidency, and thus the entire executive branch, from its purview. Bush has been shockingly willing to sign anything that comes across his desk, the first President since James Garfield to go an entire term without vetoing anything (and Garfield was assassinated after only a few months), but his reasoning now seems simple: why veto a bill when you can just change it with a signing statement? In fact, Bush has used this trick more than 500 times since he took office.
Alito has given every impression of candor and forthrightness in his confirmation hearing, but he has carefully stopped short of outright denouncing the radical Right views that make the voting public skittish. It’s the things Alito won’t say that shock the attentive viewer. He refuses to disavow the notion that the President’s “signing statements” carry equivalent weight to the actual words of the legislation he signs. He won’t flatly and directly state that the President cannot override the law or immunize others who break it. He declines to comment on whether the President is the only one who can determine the extent of Presidential power. This is madness!
The real elephant in the room, however, is whether we can even trust what Alito actually does say. Senator Schumer pointed out that both Antonin Scalia and Clarence Thomas expressed great respect for precedent in their confirmation hearings, yet these two vote to overturn precedent as though it were mere conjecture and suggestion. In his confirmation hearing, Scalia even criticized Thomas’ propensity for voting his personal opinion over established law whenever the two conflict. What is to bind Alito to his statements more closely than his colleagues-to-be? Absolutely nothing.
Of course, now everyone wants to know whether there will be a filibuster. The Democrats, faced with their last chance to make serious use of the tactic in stopping a judicial nominee, have very itchy trigger fingers, but Alito has been so careful to keep his actual opinions under wraps that there may not be any real justification. Nevertheless, Democrats may filibuster the Alito nomination simply to force the Republicans’ hand on the so-called “nuclear option” of removing the filibuster from the Senate rules altogether. That the Republicans even threaten such a thing is evidence of their obsession with pushing their agenda at the expense of everything else and symptomatic of their lack of respect for the political process. Forcing them to actually exercise the nuclear option, however, would set off a firestorm in Washington, and with the upcoming Congressional elections, the Republicans really can’t afford to look bad.
The verdict? Loathe though I am to admit it, Alito will likely pass, but it’s going to be a hell of a show. Those of you who love soap opera politics, stock up on popcorn and stay tuned. Those of you who realize you have to live in this country, stock up on bottled water and start digging your bomb shelter. It’s a scary time to be an American.
One year ago, I watched Bush appoint a slew of executive-friendly legal counsel and predicted that in his second term, he would no longer bother violating the law but would instead seek to change it. (The New Law, November 18, 2004; Chertoff Indicative of More Legal Manipulations, January 20, 2005) The more I learn about Samuel Alito, the more certain I become that I was terrifyingly right.
Unless you’ve grabbed this paper hot off the presses, Alito will be on his way to the Senate by now, likely with fewer token “no” votes than John Roberts earned. During the Roberts hearing, Biden called the process a “kabuki dance,” and having now watched two of the proceedings in their entirety, I must agree. Alito’s attempts to talk circles around the Senators of the Judiciary Committee were successful with frustrating frequency, and the Senators’ comments were disappointingly (but unsurprisingly) verbose, rambling, and non-specific. Questions with multiple elements were issued whole as bulleted lists, which of course allowed Alito to gloss over the points he didn’t care to address. Questions asked of no one in particular, rhetorical points made for the cameras, and meaningless charts were the hallmarks of yet another round of play-to-the-folks-at-home political soapboxing.
This doesn’t make the formalities uninformative; it just makes the information extraction process ridiculously oblique. More can be gleaned from what Alito refuses to say than from what he actually says in response to questions. Senator Specter opened the proceedings with an inquiry into Alito’s position on the right to privacy, in which the right to an abortion is rooted, and Alito quickly and unequivocally asserted that it is protected by the Constitution. Specter wasted no time jumping into the political powderkeg of Roe v. Wade, questioning Alito abut his stance on stare decisis, the technical term for the doctrine that past judicial decisions should be followed in deciding future cases. Alito, unsurprisingly, blandly recited the standard platitudes about precedent establishing stability and constancy in the law, but he was disturbingly careful to emphasize former Chief Justice Rehnquist’s oft-quoted opinion that stare decisis is “not an inexorable command” every time the topic was raised.
He also played the advocacy card early on, but he stopped short of disavowing his 1985 statement that the Constitution does not protect the right to an abortion. His reasoning was identical to that of John Roberts: lawyers are advocates of their clients’ interests, often expressing views with which they might personally disagree. Alito claimed that because he was an advocate for the administration at the time, it should come as no surprise that his stated views neatly toed the party line. He refused to comment further, however, on the grounds that the issue might come up before the court.
When questioned on the issue of the Supreme Court’s role in checking the President’s power, he resorted to mealy-mouthed statements to the effect that no one is above the law. When pressed, he fell back on quotations from Justice Jackson’s concurring opinion in a 1952 Supreme Court case, which set forth three ways of categorizing Presidential actions. First, there are those actions the President takes which are backed by Congress; this is when the President’s power is at its zenith. Second, there are actions which are outside the scope of Congress’ prior consideration; in such a vacuum, Presidential power is only middlin’ strong. Finally, if the President acts against an explicit Congressional mandate, his power is at lowest ebb. Does this tell you anything about what Alito thinks of Presidential power? Me either.
This is not a small question! The latest authoritarian revelation from the Bush regime is the warrantless and completely unauthorized wiretapping of American citizens, a story broken by the New York Times last month. This is in direct opposition to the Foreign Intelligence Surveillance Act of 1978, but Attorney General Alberto Gonzales claims the “all necessary and proper force” language of the Authorization for Use of Military Force passed by Congress in the wake of the 9-11 attacks gives the President carte blanche to do as he damn well pleases when it comes to prosecuting the war on terror. (Uh, how do we reconcile that with the administration’s position that the war on terror is unending? Now all the President has to do is point and scream “Terrorist!” before he attaches the car battery to your nipples.) Of course, Alito actually has a perfectly valid reason to sidestep any questions specifically about FISA; it’s almost certain to come before the Supreme Court, and Alito, if confirmed, will have to enter an opinion.
But there is also the issue of the unitary executive theory, which stems from a very fine-grained reading of the Constitutional grant of Presidential power. The first sentence of Article II states, “The executive Power shall be vested in the President of the United States of America.” Simply put, the theory holds that executive power is indivisible, vested solely in the office of the President, because it is referred to as “the” executive power. This authority is apportioned out to several different organizations, like the military and the Environmental Protection Agency, but these organizations serve as arms of the executive. The upshot of this is twofold. Procedurally, it means no part of the executive branch may sue another part because this would be, in effect, the President suing himself. The substantive aspect of this theory, however, is that the President gets to define the scope of his own power, a decision which may not be reviewed by the judiciary. John Yoo, principal defender of this position and influential White House legal strategist, argued publicly less than a month ago that the President has the power to order a suspect’s child tortured in front of them if he so chooses-including crushing the child’s testicles.
Alito has also expressed the belief that the President’s signing statements declaring his understanding of a bill’s intent should be given as much deference as the statements of Congress contained in the bill. In signing the McCain torture ban into effect, for instance, the President issued a signing statement that completely eviscerated the bill by exempting the Presidency, and thus the entire executive branch, from its purview. Bush has been shockingly willing to sign anything that comes across his desk, the first President since James Garfield to go an entire term without vetoing anything (and Garfield was assassinated after only a few months), but his reasoning now seems simple: why veto a bill when you can just change it with a signing statement? In fact, Bush has used this trick more than 500 times since he took office.
Alito has given every impression of candor and forthrightness in his confirmation hearing, but he has carefully stopped short of outright denouncing the radical Right views that make the voting public skittish. It’s the things Alito won’t say that shock the attentive viewer. He refuses to disavow the notion that the President’s “signing statements” carry equivalent weight to the actual words of the legislation he signs. He won’t flatly and directly state that the President cannot override the law or immunize others who break it. He declines to comment on whether the President is the only one who can determine the extent of Presidential power. This is madness!
The real elephant in the room, however, is whether we can even trust what Alito actually does say. Senator Schumer pointed out that both Antonin Scalia and Clarence Thomas expressed great respect for precedent in their confirmation hearings, yet these two vote to overturn precedent as though it were mere conjecture and suggestion. In his confirmation hearing, Scalia even criticized Thomas’ propensity for voting his personal opinion over established law whenever the two conflict. What is to bind Alito to his statements more closely than his colleagues-to-be? Absolutely nothing.
Of course, now everyone wants to know whether there will be a filibuster. The Democrats, faced with their last chance to make serious use of the tactic in stopping a judicial nominee, have very itchy trigger fingers, but Alito has been so careful to keep his actual opinions under wraps that there may not be any real justification. Nevertheless, Democrats may filibuster the Alito nomination simply to force the Republicans’ hand on the so-called “nuclear option” of removing the filibuster from the Senate rules altogether. That the Republicans even threaten such a thing is evidence of their obsession with pushing their agenda at the expense of everything else and symptomatic of their lack of respect for the political process. Forcing them to actually exercise the nuclear option, however, would set off a firestorm in Washington, and with the upcoming Congressional elections, the Republicans really can’t afford to look bad.
The verdict? Loathe though I am to admit it, Alito will likely pass, but it’s going to be a hell of a show. Those of you who love soap opera politics, stock up on popcorn and stay tuned. Those of you who realize you have to live in this country, stock up on bottled water and start digging your bomb shelter. It’s a scary time to be an American.
posted by J. Aaron Brown at 1/17/2006 12:44:00 PM
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