Friday, January 13, 2006

Alito, "Strict Constructionists", and the Imperial Presidency

I've not commented openly on the Alito nomination for many reasons, mostly because I veiw the whole topic rather irrelevant. I mean, many Conservatives view this as the beginning of the political "war to end all wars"...with the likes of Rush Limbaugh foaming at the mouth on his radio show, begging, pleading for this fight with "liberals". Even last year, during the presidential campaign, when loyal storm troopers...err, I mean, foot soldiers...for the GOP canvassing my neighborhood came knocking on my door, they urged me to give Bush my vote because he would likely get a chance to shape the future of the SCOTUS. (My complaint that Republicans were growing government faster than any liberal could ever dream seemed to fall on deaf ears....)

As I mentioned to a good, devout State-Worshipping Conservative co-worker of mine when he made a comment about, finally, getting some "strict constructionists" on the bench, why should we expect a President to nominate a person to the court who is going to rule virtually every act he has done as president as "unconstitutional"? We're talking about a man who put his hand on a Bible, and swore an oath to uphold and defend the Constitution, and yet still turned around and signed the No Child Gets Ahead Act, campaign finance "reform", and prescription drug socialism, and so on, while insisting that the 8th Amendment prohibition against "cruel and unusual punishment" doesn't mean torture is out of the question. We're talking about a President who thinks he can do anything he wants, whenever he wants, as long as he spits up some pious platitudes about "protecting Americans" and so forth.

As I said to my co-worker...."strict constructionist" judges? Hell! I'd settle for a "strict constructionist" President!!

In any event... I read an absolutely fabulous article today on Harvey Silvergate weighs in the last couple of days of Senate hearings on the matter, and points out that there is only one question for judge Alito that matters . The article is so good, here it is:

President George W. Bush’s relentless attack on the separation of powers, most recently laid bare in a December 16 New York Times story that he has been eavesdropping on Americans without a court order, shifted the critical focus of Judge Samuel Alito Jr.’s Supreme Court confirmation hearings drastically: where Alito stands on overweening presidential power has suddenly emerged as the preeminent issue. Period. Alito must be rejected should he refuse to state his opinion about executive supremacy or claim agreement with Bush’s approach to the constitutional separation of powers. And remember: I’m the guy who argued in this column that we should regard Alito’s nomination with an open mind (see "Give Alito a Chance," This Just In, November 4, 2005).

The limits of presidential power may sound esoteric and technical, especially when compared to the more hot-button "culture war" issues – abortion, church-state separation, affirmative action, gay marriage, gun control, and the death penalty – that have occupied Supreme Court confirmation hearings for the past three decades. Separation of powers is not a mere "issue" that can be influenced over time under our existing structure of government. Separation of powers is our existing structure of government, an essential tenet underlying our continued existence as a free country. Let’s be clear: with the Alito hearings, the potential transformation of the presidency into an elected monarchy hangs in the balance.

Bush has lent fresh urgency to the question of executive supremacy, which is why Alito is obligated to state precisely where he stands on this all-important matter. Just as worrisome as Bush’s domestic-spying activity, for example, is his recent jujitsu move on torture: when, after much resistance, he finally agreed to sign the anti-torture statute forced on him by Republican senator John McCain of Arizona and a bipartisan congressional coalition, he issued a "signing statement" warning that he would construe the act "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." Interestingly, Alito devised the concept of a presidential "signing statement" as a young attorney in the Reagan administration, thus enabling presidents to spin how they intended to interpret a statute. Bush spun this already dubious principle all the way out, reserving the right to ignore the congressional statute, and the courts too, if in his sole judgment he believes that torture is in the national interest. This may not have been Alito’s intent, but Alito should not be afforded the luxury of refusing to answer questions about presidential power – in this instance or any other – merely because a case involving this principle might come before the Supreme Court.

Both the Times and Senator McCain forced Bush to give due warning of where he is headed. Unless we maintain a clear majority of Supreme Court justices prepared to join Congress and the rest of us in fighting an imperial presidency, Bush and his successors might prevail. Reasonable people can disagree on an assortment of highly contentious issues, but not on whether the Constitution must be protected from a wrecking ball.

Members of all three branches of government take an oath of office promising to "protect and defend the Constitution of the United States." Betrayal of that oath is an impeachable offense for a sitting president. Shouldn’t it also be a disqualifying condition for a Supreme Court nominee?

Conservatives, no doubt, will view the success of the Alito nomination as a victory for their cause, while, in their usual fashion, overlook the long term destruction of individual freedom and limited government.

I wonder what I'll say the next time a GOP canvasser comes a'knockin....


Blogger Fred said...

I pay little, if any, attention to these SCOTUS nomination hearings myself. Not sure why. Maybe it's because, as you allude to, they really just end up being partisan bickering.

Besides, although everyone seems to believe it's of great importance who sits on the highest court, I've read a couple of things over the last few years saying that the consevative or liberal labels people try to pin on judicial nominees really don't make much difference after all is said and done.

Some judges who were regarded as liberal ruled opposite of what was expected once on the bench and same for judges considered conservative. So, for all the catfighting and doomsday scenarios thrown out by each side over what will happen if someone is appointed to the court, it generally amounts to nothing in the end.

It would be interesting to go back in time and see what dire scenarios different sides of the aisle predicted would happen should some of the current supremes be elected and see if anything close to that ever came to be.

I wish I could find some links to the articles I read on this subject but it's been a while.

10:42 AM  
Anonymous LibertyBob said...

You're confusing conservatives with neocons and Republicans. Most conservatives are quite upset with the British Labour Party fifth column stool pigeon sitting in the Office of Chief Executive - President George Bush, which is why Robert Higgs has just written "Resurgence of the Warfare State" lamenting the sell-out actions of this president to the conservative movement. Conservatives are fedup with the Republican Party and are looking to the Libertarian Party and newcomers like the Natural Law Party and the Constitutition Party to promote conservatism.

9:30 PM  
Blogger Fred said...

What does the Natural Law Party have to do with conservatism? I think I heard somewhere that the NLP merged with the Greens, at least in California. Can't be 100% sure about that though.

9:50 AM  
Blogger Fred said...

I guess I was partly right. According to

The national NLP closed its doors a while back but left its state branches to decide what to do for themselves. I thought I heard somewhere that the California NLP went over to one of the Green groups.

12:09 PM  
Blogger Speedothebrief said...

...And all the Democrats can say is Alito wants to strip search your daughter. C'mon!

I guess it's obvious that they (the Dems) would agree that the President should have the power to spin any legislation that comes his way. I seriously doubt that they wouldn't have heard about the "spin law." Of course, Ted Kennedy could have been busy having affairs and killing the ones that get pregnant.

10:59 PM  
Anonymous Libertarian Jason said...

I think that an argument like "strip searching your daughter" is more accessible and more easily to your average, government-educated working-class Joe...who isn't fully cognizant of the finer points of our system of government. In that sense, the Dems are definately smart in how they are marketing their opposition to Alito.

That said...if we abolish the concept of the separation of powers, then strip searching of our daughters will be the last thing we need to worry about. We will have an omnipotent dictator who can force us to obey him at will. We will have completed the destruction of everything the Founding Fathers created, and it will be at the hands of "the Right".

7:52 AM  
Blogger Vache Folle said...

I don't think conservatives are overlooking the destruction of freedom and limited government; that's their dream.

10:08 AM  

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