Sunday, January 08, 2006

Leave Alito On For Me

Finally, the wacky (OK, somnambulent) hearings on whether Samuel Alito (aka, ScAlito) will be given the OK to move to the Supreme Court starts this week. Heres' what Walter Shapiro in Salon (subscription or viewing of web ad required) has to say about this Philadelphia Phillies fan:

A fair reading of Alito's paper trail suggests a strong philosophical tilt in favor of bold Bushian assertions of presidential power. This conclusion is not based on the ideological assertions in Alito's now-famous 1985 job application when he was bucking for a promotion in the Reagan Justice Department: ''In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with the Warren Court decisions.''

Instead, the smoking-gun document comes much later -- from November 2000 -- when Alito, then a federal judge, participated in a panel discussion sponsored by the Federalist Society, the mother church for conservative lawyers. In his presentation, Alito argued strenuously in favor of a hail-to-the-chief legal theory called "the unitary executive." (Note to readers: Relax, this won't be on the midterm.) Briefly, what this theory argues is that every part of the executive branch (including regulatory agencies like the Federal Trade Commission and, yes, independent counsels like Kenneth Starr) should be legally under the control of the president. While Alito himself did not mention national security in his speech, other proponents of this theory -- notably Dick Cheney's new chief of staff, David Addington -- have leaned on it to argue that a president can go beyond the law in carrying out his duties as commander in chief.

For those planning to follow the Alito hearings without the benefit of a legal education (having watched the O.J. Simpson trial on TV doesn't count), a senatorial question about "the unitary executive" should not serve as an excuse to raid the refrigerator. While Alito (following the precedent set by Ruth Bader Ginsberg) will almost certainly duck a specific question on the legality of NSA eavesdropping because it could become a Supreme Court case, he has nowhere to hide when asked to amplify his 2000 remarks to the Federalist Society. The questioning about this speech will probably provide the most definitive clues about how much a Justice Alito would worship at the altar of the imperial presidency.

Up to now, I have flagrantly violated the pundit's code by writing a preview of the Alito hearings that has not mentioned Roe v. Wade or that the next justice will be replacing Sandra Day O'Connor, the swing vote on virtually every divided issue before the court. The reason for this self-restraint is that the fate of the abortion decision and O'Connor's legal legacy are not, by themselves, enough politically to derail the Alito nomination. In early December, political strategists directing the opposition to Alito privately calculated that they had almost no chance of stopping the rush to giving Bush another justice.

A month later, the mood on the left is much less bleak and meek. The gathering opposition to the Bush-Cheney version of "Big Brother is watching you" represents part of the equation. Another element is the gathering confidence among Senate Democrats -- after delaying the Patriot Act and stopping Arctic drilling -- that Bush can be beaten. But the final factor is the great unknown hovering over the hearings: Alito in his courtesy calls on Democratic senators came across as lacking the easy charm of Roberts and seemed -- although no one will ever admit this on the record -- not very likable.

Kennedy, who calculates that he has voted on 22 Supreme Court nominees during his four decades in the Senate, offered a simple formula for handicapping this week's confirmation hearings. "All these nominees basically win it or lose it themselves," he said. "That's been my experience on the committee." The betting line still favors Alito, especially since it is unclear whether the Senate Democrats are willing to risk their recent political gains with a filibuster. But remember that when Alito was an impressionable teenager in 1964, his favorite baseball team lost 10 games at the end of the season to blow a pennant that was theirs for the asking.


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