Judge Alito and Executive Power

[Thom Little]

Samuel Alito may turn out, perhaps fortunately for the rest of us, to be a victim of cruel fate, being the wrong person in the wrong place at the wrong time. Here he is, a noted—and more than competent, in any conventional sense—ultra-conservative who has the misfortune of having to face the Senate on January 7 to defend his nomination to the Supreme Court by President George W. Bush. Alas for him, the chair of the Judiciary Committee, Republican Senator Arlen Spector of Pennsylvania, seems to be more than a bit upset about recent revelations concerning NSA spying, and one can anticipate that the constitutional questions raised by the revelations will move to center stage of the hearings.

The initial response to his nomination revolved almost entirely (though not exclusively) around the implications, should he join the Court, for the maintenance of the legal regime regarding abortion signified by Roe v. Wade. Opponents emphasized the possibility that he would vote to overrule a decision that he clearly believes was illegitimate when issued in 1973; supporters either applauded that possibility or proclaimed his fidelity to the purported “superprecedent” of Roe, given that many following decision affirmed its basic holding. Spector is probably the most avid supporter of Roe among the Republican senators, but it seemed doubtful that that would be enough to wean him from loyalty to his fell Republican George W. Bush. It is not clear that this will be the case in the new post-NSA world.

What explains Alito’s nomination? It is clearly not that he has expressed grave doubts about Roe v. Wade. One could reel off at least a dozen of plausible nominees who share that hostility. Nor was he nominated because he is generally protective of the rights of the religious and skeptical of the Establishment Clause doctrines associated with Justice William Brennan. There are many other potential justices who share that view as well. Indeed, if challenging Roe and upholding the claims of Evangelical Christians were Bush’s (or Karl Rove’s) main concerns, there literally could have been no better nominee than 10th Circuit Court of Appeals Judge Michael McConnell, a former professor at the Universities of Chicago and Utah who was warmly supported by many liberal law professors (including myself) when the Senate considered his nomination in 2002 (when he was delayed by Democrats who were then in the majority) and then in 2003, when he was confirmed.

So one has to explain Alito’s nomination against the background fact that by any plausible account McConnell would have been a more distinguished nominee with easier prospects of confirmation. Key to any answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the “Commander-in-Chief” Clause of Article II of the Constitution. Dick Cheney has apparently been obsessed since his own service as Gerald Ford’s Chief of Staff with returning the presidency to the “imperial” status that was, he thought, the victim of Watergate. For him the Bush Administration is about rolling back what are perceived as illegitimate incursions on raw presidential power.


http://balkin.blogspot.com/2005/12/judge-alito-and-executive-power.html

[Rainscents]

1. This is very good and I agree with you!

Thanks.

[eve_was_framed]

2. I've never felt that Roe was what this regime and it's minions to the

right had in their sights. Since day one their secretive stance and control of the "fifth estate" have eroded any transparency to which a "healthy" democratic government should operate within. Having engineered their "New Pearl Harbor" they have pretty much been conducting themselves as Fascist's
without impunity and the only question I've had all along is, "when in the hell is everyone going to wake up and stop it"? Otherwise, there's no surprises to the why's of Alto's nomination, for me anyway.

I certainly hope that those still asleep will read what you have written and awaken :-)

[Czolgosz]

3. Balkin has nunchuck skills, bowhunting skills, computer hacking skills...

I also think that Alito's out-of-control view on limiting congressional authority was a part of the reason for his nomination (McConnell is not nearly so extreme in this regard). Rec'd.