Views from the Alito Deck

[[C O U R T S]] * Not having a legal background, I don’t really consider myself qualified to judge the suitability of Samuel A. Alito Jr. for a seat on the U.S. Supreme Court. However, many far more eligible authorities have weighed in, during this week of combative Senate confirmation hearings, on the staunchly conservative jurist’s fitness to replace retiring Associate Justice Sandra Day O’Connor--and their assessments are by no means whollly favorable.

The New York Times editorialized today that the shrinking number of moderate, pro-choice Republicans on Capitol Hill--those who still believe that women should have access to safe, sane abortion procedures (as opposed to clandestine, dangerous operations conducted in a retrograde atmosphere of law-breaking and fear), have a special dilemma on their hands: “if Judge Alito gets to the court, there is every reason to believe that he will vote to overturn Roe v. Wade when the opportunity comes.

In 1985, when he was a 35-year-old government lawyer, Judge Alito stated that the Constitution did not protect abortion rights, and that he was “particularly proud” of his legal work arguing that the Constitution did not confer the right to an abortion. There is now ample evidence that he continues to hold that view.

He refused time and again in this week’s hearings to call Roe “settled law.” That’s a giant red flag because he did say that the one-person-one-vote cases, which he denounced in the same 1985 memo--and many other decisions--are now settled law. In sharp contrast, as Senator Dianne Feinstein, Democrat of California, underscored, Chief Justice John Roberts Jr. said at his Supreme Court confirmation hearing last year that Roe was settled law. ...

Judge Alito’s assertions that he will keep an open mind on Roe are little comfort. With nearly 70 percent of Americans saying in a recent Harris poll that they would oppose Judge Alito’s confirmation if they thought he would vote against constitutional protection for abortion rights, he was not likely to say at his hearings that he would do so. Few nominees would be so brave or foolhardy.

As a result, senators have to try to forecast the behavior of a nominee like Judge Alito, who comes with a clear record of opposition to abortion rights and strong support from the anti-abortion movement.

The single most important thing a senator can do to support abortion rights is to vote against Supreme Court nominees who would take such rights away. Given Judge Alito’s record and his testimony, it is hard to see how Senators [Arlen] Specter, [Lincoln] Chafee, [Olympia] Snowe and [Susan] Collins--or any other pro-choice senators--can call themselves strong advocates of abortion rights if they support him.

Radio show host Cenk Uygur, blogging at The Huffington Post, insists that the real question surrounding Alito isn’t how he might rule on abortion rights (“Alito will vote to overturn Roe”), but how he will executive power:

Sam Alito believes the executive has the power to ignore laws he does not agree with. That is not an exaggeration. I wish it were. ...

If I tell you what the implications of this theory are, you wouldn’t believe me. If I told you it allows the President to circumvent every law passed by Congress, you would say I’m a crazy liberal (until five years ago I called myself a conservative, I think it is so sad that conservatives now consider defending the Constitution a sign of weakness). If I told you the President has already used it to violate three different federal statutes, you’d say that couldn’t be true.

So, I won’t tell you, I'll let The Wall Street Journal tell you. Read this article and see if you agree with the philosophy. Didn’t we defeat a King George to make sure the executive didn’t have complete, unchecked power? It looks like we’re going to have to do it again.

There is a lot of discussion on television these days about politicians or judicial candidates being within the mainstream or not. Well, there could be nothing more outside the mainstream than the President’s use of the unitary executive theory. Will someone please do a poll of constitutional law professors in the country? I bet you couldn’t get ten percent to buy into this theory. I have never seen, heard or read a legal expert who wasn’t a member of the Federalist Society defend this theory. This is some harebrained concoction dreamt by a bunch of legal extremists that Dick Cheney has grasped on to make a claim for more power. But what is really scary is that one of these extremists might soon become a Supreme Court justice.

On this alone, Sam Alito must be stopped. This isn’t your garden variety every day Supreme Court confirmation hearings. Some specific right isn’t at stake here, the whole system is at stake.

Over at Daily Kos, blogger Georgia10 disputes the much-repeated presumption that a president is somehow entitled to seat any and all of his Supreme Court nominees, especially when that chief executive has, like George W. Bush, “abused the trust of the American people”:

Here is a President who has misled our Nation into war, abrogated the laws duly enacted by Congress, and violated our constitutional and civil rights. He’s drudged through scandal after scandal, but has yet to be held accountable. Where is Phase II of the pre-war intelligence investigation? Where is the outrage over the fact he nullified Congress’ ban on torture? He violated his oath to protect the Constitution when he issued his royal edict to spy on us outside the law. Yet who will [hold] him responsible? A Republican Congress?

The President, exhibiting the theory of the unitary executive that Alito endorses, has snubbed the legislative and judicial branches of government and has declared himself above the law. And now, Senators will claim with straight face that he is entitled to his nominee?

The man is entitled to nothing from the Congress he has abused and misled. The man is entitled to nothing from the American people he has betrayed. It is us, the citizens of this country, who are entitled to the truth. And until we receive that truth, this nominee should not pass.

To let Alito sail through without a fight is to reward the President for his illegal and immoral behavior. He has been rewarded enough. It’s time the President learns he cannot abuse the public trust without consequence.

This unorthodox approach to the filibuster, I know, will not be embraced by many Democrats, especially those who already think filibustering is off the table. But to those Democrats, I ask you the following. Imagine if, during the height of Lewinsky scandal, a vacancy occurred on the Supreme Court. Does anyone honestly believe the Republicans would passively state that President Clinton was “entitled to his nominee”? Or would they spit fire and raise hell and refuse to give him any deference at all?

When the President commits an impeachable offense, the deference traditionally accorded to his judgment should cease to exist. A President who has betrayed the American people should not be entitled to the rubber-stamping of his nominees. Instead, the Senate should refuse to consider Alito’s nomination until the President comes clean to the American people.

Washington Post columnist E.J. Dionne wonders whether, even after 18 hours of televised hearings (which included one bogus, politically spinnable cryfest from Alito’s wife), we yet know enough about the views of this U.S. Court of Appeals judge to determine how he might tip the balance of a Supreme Court that has long been pretty evenly split between liberals and conservatives:

Alito, an ardent baseball fan, established himself as the Babe Ruth of evasion.

The headlines went to the abortion issue. Alito was pressed about his statement in a 1985 job application letter to the Reagan administration that “the Constitution does not protect a right to an abortion.” It is a reasonable view shared by millions of Americans. Republican Sens. Sam Brownback (Kan.) and Tom Coburn (Okla.) were refreshingly open in their denunciations of Roe v. Wade.

But Alito would neither embrace nor back away from what he had said. He did allow that “there is a general presumption that decisions of the court will not be pverruled.” Well, yeah.

When Sen. Dianne Feinstein (D-Calif.) asked Alito if the issue was “well-settled in court,” he offered the celebrated formulation: “I think that depends on what one means by the term ‘well-settled.’” The standard dodge is that nominees can’t answer questions bearing on cases they might later have to decide. But Democrats Feinstein, Richard J. Durbin (Ill.) and Charles E. Schumer (N.Y.) all noted that Alito was perfectly happy to speak expansively on some questions he would face, notably reapportionment.

Sen. Joe Biden (D-Del.), much mocked for his prolix prattling in the early going, actually made a pithy observation yesterday. He said that nominees “tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them.”

Conservatives are right that our abortion debate is distorted because Roe v. Wade has forced too much discussion into the limited confines of Senate hearings over future judges. But that doesn’t make the circumlocutions any more satisfactory. Conservative appointees who might well overrule Roe can’t quite say so if they are to get the votes they need from Republican senators who support abortion rights and want to protect themselves with pro-choice voters.

That was just one of many evasions. When Sen. Patrick Leahy (D-Vt.) asked if “the president has the power to curtail investigations, for example, by the Department of Justice,” Alito replied: “I don’t think the president is above the law.” A fine sentiment that didn’t answer the question. Leahy asked yesterday if Congress could strip courts of their authority to rule on cases involving the First Amendment. Alito didn’t have a view. ...

My biggest worries about Alito are how he would rule on presidential power, workers’ rights, civil rights and regulatory issues. Cass Sunstein, a University of
Chicago law professor, has noted that Alito follows the law when it’s clear, but he almost always tilts toward his conservative predilections when the law is less settled.

On the other hand, Salon columnist Joe Conason says we now know enough about Alito’s long-ago membership in the Concerned Alumni of Princeton (CAP), a right-wing group whose publications said some rather unpleasant things about blacks, women and gays, to make us decidedly uncomfortable about how he might rule in the future regarding women’s rights and gay rights:

It’s easy to tell when conservatives feel most embarrassed by a particular political revelation because indignation immediately swells while memory grows dim. Whatever the outcome of Samuel Alito's Supreme Court nomination, his membership in the Concerned Alumni of Princeton is the kind of issue that conservatives clearly prefer to avoid.

They don’t like to be reminded of their historical opposition to civil rights, their continuing hostility to the advancement of minorities, or their bad habit of coddling and cultivating bigots.

That is why Sen. Orrin Hatch angrily demanded to know why anyone would dare ask Alito about CAP, why Sen. Lindsay Graham theatrically apologized to Alito and his family about the controversy, and why author Dinesh D’Souza, who once edited the organization’s magazine, dismissed the subject as a “diversion.” That is why Fox News and the conservative media are exploiting his wife’s tears to suggest that those questions were somehow illegitimate.

That is also why Alito himself has claimed to be unable to recall his decision to join the reactionary group of wealthy Princeton graduates (founded in 1972), which became notorious for its opposition to women and minorities on campus, its vicious bigotry against homosexuals, and its defense of the interests of affluent white male alumni and their sons. A convenient credential back when he was applying for a post in the Reagan administration, where his résumé would be perused only by like-minded right-wingers, membership in CAP became troublesome under the hot lights of a Supreme Court nomination hearing.

Perhaps under coaching from the White House, Alito came up with a canned, flag-waving justification for joining such a group: to defend the right of the Reserve Officers Training Corps to remain on campus--an explanation that emphasizes patriotism and duty rather than prejudice and privilege.

The blustering response from the right and the strange amnesia suffered by the nominee only emphasize how much they have to hide when such topics emerge--and why they have so frantically sought to divert attention from this controversy. Things that happened long ago are fair game when raised about Bill Clinton or John Kerry, but out of bounds when the subject is a Republican nominee to a lifetime post on the nation’s highest court.

Whether it’s possible, or even prudent, for Democrats to try heading off Alito’s appointment with a filibuster (as Senator Joe Lieberman [D-Connecticut] has suggested might still be possible) is hard to assess at this point. It may already be a foregone conclusion, as more than one major U.S. newspaper suggests, that Bush’s third Supreme Court nominee (let’s not forget the Harriet Miers fiasco) will become the 106th white male to serve on that high bench, but National Public Radio commentator Daniel Schorr predicts the vote will in no way be unanimous. He’s anticipating party-line votes across the board--10-8 in the Senate Judiciary Committee (with Republicans in the majority) and 55-45 in the Senate as a whole (again favoring the GOP and Alito).

ELECTIONS CAN HAVE DISASTROUS CONSEQUENCES: Having already appointed one-fourth of the U.S. federal appeals court judges, and preparing to see the second of two self-described conservatives installed “on a Supreme Court that has only two members appointed by a Democratic president,” Bush is “putting an enduring conservative ideological imprint on the nation’s judiciary,” reports The New York Times. Democrats “see little hope of holding off the tide without winning back control of the Senate or the White House.” Read on.

A PROBLEM OF HOPE: “Last time I checked, Article II didn’t give the President the power to appoint a nominee with the advise and the consent of the media,” writes the once more eloquent Georgia10 at Daily Kos. “Yet so many take the media’s smug words that ‘Alito will be confirmed’ as gospel. It’s a self-fulfilling prophecy, where the media and the GOP tell us we'll fail, so we believe them, and we do.” Read on.

READ MORE: “Wider Fight Is Seen as Alito Victory Appears Secured,” by David D. Kirkpatrick (The New York Times); “If Bork Was Too Radical for the Court, Why Isn’t Alito?” by Glenn Greenwald (Unclaimed Territory); “Is Roe v. Wade Already Collapsing?” by Ellen Goodman (The Boston Globe); “Where’s the Outrage?” by Marc Acriche (State of the Day); “Concerned Alumni of Reagan: Sam Alito Goes From One Group of Grumpy Old Men to Another,” by Bruce Reed (Slate); “Alito’s Fantasy World,” by Kate Michelman (The Boston Globe).