Two views contra Alito

The other day, I said that despite reservations about Alito’s record, I believe he can and should be confirmed because (as a Washington Post editorial argued) a qualified nominee should not be rejected because he reflects the ideology of a duly elected president.

Here are two interesting arguments to the contrary, both from people who are not wild-eyed radicals.

The New Republic (regigstration req’d) makes a two-part argument:

More important in our view are the central questions of the confirmation hearings: namely, Alito’s views about congressional and executive power. We were especially troubled by Alito’s vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce. Indeed, in his hearings, Alito emphasized that, in his view, Congress needs to explicitly identify the effects of its laws on interstate commerce for them to pass constitutional muster. Alito reaffirmed his view that the Supreme Court’s 1995 decision striking down the federal ban on guns in schools was a constitutional “revolution”–a development he seemed to view as positive. And he refused to say that all of the Supreme Court’s Commerce Clause decisions of the past 50 years are “well-settled precedents,” allowing only that “most” of them are settled. Showing little of Roberts’s emphasis on the importance of judicial deference to Congress, Alito raised fears that he would join Scalia and Thomas in overturning a host of federal laws. After all, many of the cases upholding congressional power during the last 50 years are arguably inconsistent with the original understanding of the Constitution; and, if Alito is willing to deny Congress the power to regulate machine-gun possession, it’s not unreasonable to fear that he might deny Congress the right to regulate drug possession or protect the environment.

So far, I see mostly good news here. As far as I’m concerned, curbing Commerce Clause overreach would definitely a good thing. But a Scalia-type justice denying Congress the right to regulate drug possession? Did the editors at TNR sleep through Gonzales v. Raich?

And then there is executive power. Alito was questioned extensively on his views about the theory of the “unitary executive,” which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential “signing statements,” which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature’s intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress’s explicit wishes. As tnr Legal Affairs Editor Jeffrey Rosen argues this week, Alito might join advocates of unchecked executive power, such as Thomas, who argue that the president can do whatever he likes in the war on terrorism, despite the opposition of Congress and the lower courts. As the Bush administration’s rejection of congressional efforts to restrict domestic surveillance and torture suggests, the prospects of an imperial presidency unrestrained by the courts or Congress could be grave.

Although the decision is not easy, our concerns about Alito’s lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito’s confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.

If Alito is confirmed, we hope that he proves to be practitioner of restraint rather than a justice in the mold of Scalia and Thomas. But the stakes for the Court are too high, at the moment, for us to vote our hopes rather than our fears.

The second point, I think, is well-taken, and it is echoed by Matt Welch at Reason.com. In particular, Welch points out that Alito’s deference to the executive could backfire on some of the conservatives who support him now if the Democrats recapture the White House.

A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team’s in charge. Because some other team will be in charge some day, and they will find their own unique opportunities to abuse whatever power they inherit.

George Bush and Dick Cheney have been very deliberately accumulating and building power in the executive branch since taking the oath of office. On just his 10th day in office, Bush let us know that “I am mindful not only of preserving executive powers for myself, but for predecessors as well.”

The remark was played up as a comical Bushism—somewhat inaccurately, since he was justifying the decision not to reverse one of Bill Clinton’s pardons. But as we’ve come to learn, it was a dead-sober glimpse into the core Bush/Cheney governing philosophy of rolling back what the veep recently described as the “erosion of presidential power and authority … at the end of the Nixon administration.”

Says Welch:

[T]he deal-breaker for me was this mealy-mouthed response to Sen. Russ Feingold (D-Wisc.), who is consistently one of the only members of the Judiciary Committee to approach nomination hearings with the seriousness they warrant:

SEN. FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute. Is that correct?

JUDGE ALITO: Well, I don’t want to—I don’t—I want to be very precise on this. What I have said—and I don’t think I can go further than to say this—is that that situation seems to be exactly what is to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do is explicitly—has been explicitly disapproved by Congress. So his own taxonomy contemplates the possibility that—he says that there—this—there is this category, and cases can fall in this category, and he seems to contemplate the possibility that that might be justified.

But I’m not—I don’t want to even say that there could be such a case. I don’t know. I would have to be presented with the facts of the particular case and consider it in a way I would consider any legal question. I don’t think I can go beyond that.

I don’t feel comfortable with a Supreme Court unclear on the notion of whether the president can legally break the law; the existence of such a deferential bench is a standing invitation for Bush and his successors to do just that.

Today these crimes will be justified in the name of being “serious about fighting the war”; tomorrow they will be justified in the name of being “serious about protecting our children.” Which is why yesterday is almost too late to finally begin showing some seriousness about protecting the constitutional liberties that neither of the major political parties respect when they hold the keys to the White House.

I think Alito’s confirmation, at this point, is pretty much an inevitability. And maybe Welch is overreacting. But at the very least, it’s something to think about. And, I would say, to worry about as well.

11 Comments

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11 responses to “Two views contra Alito

  1. William R. Barker

    The New Republic admits…

    “After all, many of the cases upholding congressional power during the last 50 years are arguably inconsistent with the original understanding of the Constitution…”

    ===============================

    And that’s really the heart of the matter: What does the Court do when faced with arguably “un” or more charitably “extra” constitutional Supreme Court precedents?

    My view is that two wrongs don’t make a right and you either base rulings on the Constitution as written and understood at the time (which applies to Amendments also) or you don’t. Justice Thomas is the strongest supporter of this basic rule of thumb. Justice Scalia tends to applaud the theory but temper the “absolutionism” with great respect for precedent. Only time will tell where Alito ultimately fits into the sliding scale of respect for “originalism” and/or “original intent.”

    Moving on to the so-called “theory” of the Unitary Executive… how the heck can anyone seriously question that this is how the system is supposed to function? Court opinions to the contrary are just plain wrong.

    As for the “Presidential Signings,” let the president – whomever he or she is – attach his “understanding” of a bill to each bill signed. (Now go back to our discussion of Doe v. Groody… the affidavit didn’t change the warrant, did it?) Heck… I’d like to see each and every Member of Congress and Senator issue “signing statements” attesting to what they think the “meaning” of every bill they vote on is! The more context… the better! It’s called accountability and since many bills are purposefully vague and unspecific (either through incompetence or a deliberate decision to kick the issue over to the courts or future congresses) I see much good coming from such openness and specificity.

    Next…

    According to The New Republic, “In a conflict between the President and Congress, nothing in his record suggests that Alito would defer to Congress’s explicit wishes.”

    So…??? That’s why the Constitution give Congress the POLITICAL and FUNCTIONAL power of Impeachment. Get this straight, New Republic – the Supreme Court was NEVER meant to serve the role of “supreme authority” over the two other CO-EQUAL branches of the federal government and the various state governments in all instances!

    On to Matt Welch at Reason.com…

    I agree with Matt when he writes, “A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team’s in charge.” I also agree that “George Bush and Dick Cheney have been very deliberately accumulating and building power in the executive branch since taking the oath of office.” Heck… Bush feels so strongly about Executive power, authority, and protections that he refused to buttress his conservative credentials by going after the Clinton last minute pardons and other “executive privilege” tainted Clinton scandals.

    Listen… personal point of view… not “provable”… but from everything I know and everything I THINK I know about Bush from following his presidential career and reading about “Bush the man,” I believe that George W. Bush BELIEVES he’s acting in the best interests of the nation and he BELIEVES he has very broad powers to accomplish what he sees as his mission and duty as President.

    I’m not sure if this was Cathy writing or Cathy quoting, but someone wrote, “If Alito is confirmed, we hope that he proves to be practitioner of restraint rather than a justice in the mold of Scalia and Thomas.”

    Again… words and definitions are IMPORTANT! What’s the meaning of the word “restraint” as used in that sentence? Does “restraint” mean allowing Supreme Court rulings to uphold precedent even where it can be agreed that the precedent was incorrectly decided in terms of the Constitution as opposed to political utility? Is it “restraint” to refuse to say that all of the Supreme Court’s Commerce Clause decisions of the past 50 years are “well-settled precedents,” allowing only that “most” of them are settled?

    Finally, let me close by agreeing with Cathy Young when she closes her post with “maybe Welch is overreacting. But at the very least, it’s something to think about. And, I would say, to worry about as well.”

    Yes! By all means… let’s all THINK and let’s all WORRY. These are important issues worthy of thought and worry.

  2. mythago

    A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team’s in charge.

    This will make zero sense to people who don’t believe in the rule of law–they believe in the rule of man, namely THEIR man, and they aren’t capable of understanding that those same rules will help the other side, should it come into power.

    I believe it was here that a poster said he had success with his conservative friends by saying “Would you want President Hillary Clinton to have this power?”

  3. Marghlar

    Sigh…people really do not understand the theory of the unitary executive. Judge Alito put it well — it has nothing to do with the amount of executive power — you could have a very weak, but unitary, executive. It goes only to whether there can be executive agencies outside of the control of the president. It is not unreasonable to suggest that there shouldn’t be (or that the constitution, properly read, would prohibit it).

    Likewise, the Youngstown/inherent authority argument. Alito’s legal analysis was on the money — the key issue is whether power is given to the president such that Congress can’t divest it. It’s very case by case, but it certainly exists. If Congress passes a law outlawing presidential pardons, then the President can still pardon people. His authority to pardon comes from Article II of the Constitution, and Congress can’t take it away. Of course, applying this analysis to individual cases requires a close, careful reading of the constitutional test and a lot of thought about what powers, exactly, the Constitution is assigning to the coordinate branches of government. But saying the President is being authorized to “break the law” is missing the point — Judge Alito was saying that, in some cases, the law would be unconstitutional, and hence void. Ergo, there is no law to break.

  4. John Thacker

    But a Scalia-type justice denying Congress the right to regulate drug possession? Did the editors at TNR sleep through Gonzales v. Raich?

    Well, the author compares him to Justice Thomas as well. Assuming that you didn’t “sleep through Gonzales v. Raich” also, you’ll note that Justice Thomas strongly dissented from Gonzales v. Raich. I suppose you’re just arguing that Justice Thomas isn’t Scalia-type. In a way that’s certainly true– Justice Thomas seems to be much more consistent about limiting federal power, and much more likely to disregard precedent.

  5. Revenant

    Nicely put, Marghlar.

  6. Anonymous

    Sorry but, no, not “nicely put” Marghlar.

    The powers Jackson talks about in Youngstown are NOT those that are explicitly granted in the Consitution. It true that Congress couldn’t strip the President of the pardon power; Congress couldn’t install the Speaker of the House as the Commander in Chief either. But who honestly wonders about this? That was not the question.

    The question – the one to which Alito was clearly responding – is what happens when the President claims a power NOT explicitly granted in the Constitution as “implied” or “inherent” that conflicts with a constitutionally VALID law by Congress? Alito’s response is so alarming because for the Judiciary to allow the President to ignore Congress in these circumstances would be to make the Executive the arbiter of his/her own power.

  7. Revenant

    for the Judiciary to allow the President to ignore Congress in these circumstances would be to make the Executive the arbiter of his/her own power.

    If the President is being *allowed* to do something by the Judiciary, doesn’t that mean that the Judiciary is acting as a check on his power?

  8. Anonymous

    Revenant:

    That’s cute, but you’re not giving my comments a fair read.

    If a police officer just sits still, eating donuts, while an unarmed man robs the store, I would be upset that he “allowed” the thief to walk in and steal the goods.

    I thought it was clear that “allowed” in this context means I think the Court should be acting as a check on the President’s power but isn’t.

    If we want to get technical about it then yes, there is a formal difference between the Court holding that separation of powers cases are nonjusticiable political questions and the Court asserting jurisdiction over the case and deferring to the President in his assertion of power.

    Which one of these approaches is preferrable is an interesting debate. Another great opinion by Justice Jackson was his dissent in Korematsu where he warned that the Court should avoid placing its imprimatur on unconventional claims of executive power in wartime. An opinion that asserts jurisdiction and then rules for the executive out of deference in wartime, he observed, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” The Court should therefore recognize that it lacks the insitutional clout to stand in the way of the Excecutive during war time.

    I think Jackson makes a good point – but then again, Korematsu was a case about an undisputeably military order in a time when the boundaries between warfare and daily life still seemed clear. I actually doubt that Jackson – who was a prosecutor at Nuremburg and fiercely concerned with government oppresion – would want to see the Court stay out of the way in a situation like we have now.

    In any case, if you were referring to this technical point then, you should have been more clear.

  9. Revenant

    That’s cute, but you’re not giving my comments a fair read. If a police officer just sits still, eating donuts, while an unarmed man robs the store, I would be upset that he “allowed” the thief to walk in and steal the goods.

    That example doesn’t hold up under scrutiny. What you said was that the Supreme Court would make the President “the arbiter of his own power”. In your example the policeman is still the arbiter of power — he just isn’t exercising it. The thief is still at the mercy of the police.

    You’re trying to make it sound like the President would be subject to no checks and balances if Alito had his way. But an unused check is a check nevertheless. You might as well claim that the President isn’t acting as a check on Congress unless he vetoes every bill that crosses his desk. The point is that he CAN veto bills he doesn’t like, just as the Supreme Court CAN limit some Presidential powers.

  10. Anonymous

    But an unused check is a check nevertheless.

    That would be true if we didn’t have stare decisis.

    So you’re right, my policeman example was not egregioius enough. The example should be a policeman who commits to never apprehend a robber. You may disagree that the Court would be doing that if, for example, it deferened to the President in reading the AUMF to authorize illegal domestic spying, but it strains credulity for me to read the AUMF that broadly.

    If 1) the Court observes precedent and 2) it says that the President can conduct illegal domestic spying simply by saying that it is “necessary and appropriate” under the AUMF, I’m not sure that there is anything (at least not anything politically palateable) that the President couldn’t do.

  11. Revenant

    The example should be a policeman who commits to never apprehend a robber.

    A policeman who committed to never apprehend a robber would be replaced.

    Similarly, should we ever have a Supreme Court which favors never restricting Executive power — should we ever have such a court, since obviously neither Alito nor anyone on the current court falls into that category — Congress will see to it that replacement justices have a different attitude. The power of the court to restrict the Executive will not be lost.

    So I’m afraid you’re still mistaken — the check on Executive power remains.

    If 1) the Court observes precedent

    There is no precedent restricting wiretapping of domestic-to-overseas communications during wartime. There are related precedents, but they fall on both sides of the question.

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