Following 9/11, the Bush administration repeatedly pushed the envelope of executive power, and may well have crossed a number of lines. In the months and years to come, the legality of these decisions will be adjudicated in the federal courts. Bush knows that his legacy will, in large part, be measured by whether his decisions are vindicated or condemned as executive overreaching. Bush does have a litmus test for judicial nominees, and it has nothing to do with abortion.
Bush's Supreme Court (and lower court) nominees are characterized by their slavish, uncritical deference to assertions of power by the Executive Branch, especially in times of ostensible "war." Indeed, as AL points out, now-Supreme Court Chief Justice John Roberts was selected by the White House to be the Supreme Court nominee while he was in the middle of hearing arguments in the case of Hamdan v. Rumsfeld (.pdf), in which Roberts decided in favor of the Administration's position and allowed the use of "military tribunals" at Guantanamo.
In opposing Roberts' nomination, the People for the American Way emphasized Roberts' deference to executive power at least as much as his restrictive view of privacy rights:
In his limited time as a federal appeals court judge, Roberts has shown enormous deference to the executive branch, with a broad and expansive view of presidential power that threatens the system of checks and balances.
When it comes to worshiping at the altar of unchecked executive power, Sam Alito is even more zealous than Roberts. Even conservative Bush ally and Roberts admirer Norm Ornstein of the American Enterprise Institute has warned that Alito is far more deferential to Executive power than Roberts is. As Steve Clemons of The Washington Note put it: Ornstein's Op-Ed shows that Alito "is a spear-carrier for expansive Executive Branch authority and looks at both Congress and the Judiciary as junior players in government."
Whereas Roberts replaced Executive Branch defender William Rehnquist, Alito is nominated to replace the much more Executive-scrutinizing Sandra Day O'Connor, which will alter the balance of the Court fundamentally, and certainly with regard to issues of Executive branch power.
It is therefore not hyperbole to warn that Alito's ascension to the Court could very well mean the disappearance of the last chance for some limitation to be placed on the dangerous powers which the Bush Administration is claiming for itself. Particularly now that Bush's Yoo Theory of Unlimited Executive Power is being extended literally to encompass the Executive power of law-breaking, it is difficult to imagine anything more important at stake in Alito's hearings.
AL quotes an article by Slate's Dahila Lithwick concerning exactly what is stake in the Alito nomination hearings. The article was written prior to the NSA eavesdropping revelations but has obvious applicability to it:
I think we will, all of us, be very sorry. Not just the edgy civil libertarians or the ACLU types, and not just Jose Padilla, or his attorneys, but everyone who believes there is a place for therule of law even in the midst of a war, especially when that war threatens to go on forever.
It's hard to imagine a worse combination than an Administration which claims the right to unlimited "wartime" power (including law-breaking) and a Supreme Court comprised of a majority which subscribes to John Yoo's authoritarian theories of presidential powers. But if Sam Alito takes Justice O'Connor's seat on the Supreme Court, that's exactly what we're going to have.
I don't mean this as a criticsm, it may even be a compliment, but when I'm done with the part of my day where I read your blog, I can't shake the feeling that we are so very very fucked.
ReplyDeleteI hope it's just that you're more perusasive about these issues than the situation warrants. Becasue you are very persuasive in making this case.
This theory nicely, and finally, explains the Harriet Myers nomination.
ReplyDeleteThe only kink in the theory that executive power grabbing is the prime motivation for Bush's actions is that it assumes Republican supremacy for the foreseeable future. I have a hard time believing that the Republican establishment can't even hypothesize the possibility of a Democratic presidential victory, especially given the recent eight year run of the hated Bill Clinton.
I agree with Eddieball. we're fucked. The GOP contrals the House and Senate. They will approve Alito. And then you have full control by the GOP over the Congress, the Court and the WH.
ReplyDeleteWho is going to stop Bush? Nobody. And he knows that. Which is what explains the smugness.
Bush won't be stopped if people presume he can't be. This explains much of the bluster.
ReplyDeleteHey, great post. Miers makes much more sense in this regard.
ReplyDeleteI think there's a decent argument that this is the reason Roe v. Wade is such a bad opinion. Focusing so much energy on the abortion issue through the judiciary has led to obsessive focus on it to the near-exclusion of everything else. Watching nomination hearings it sometimes seems like it should be called the United States Abortion Court. Yet under Roe, much of America is left w/ de-facto complete lack of access to safe, legal abortions.
Meanwhile, though it might come as a surprise, the Court actually rules on other things besides abortion, such as whether to limit the Emergency War Powers claimed under the Yoo theory.
Unfortunately, The real bad actor here is Congress. Ambition countering ambition doesn't seem to work the way Madison intended when Party comes before Constitutional responsibility, or when ambition consists of passing vaguely worded allowances of broad power, which allow Congress to take credit or cast blame without any actual oversight, while concentrating on more important things like gerrymandering, which dessert to order at Signatures, or raising $ for your legal defense fund.
That said, I'd be happier if the Ct seemed a little more willing to hold their feet to the fire, by actually requiring them to specifically authorize these Emergency Powers. I don't think we're going to see another Steel Seizures opinion coming from Roberts or Alito.
Hmmm. I really think Norm Ornstein and others are indicting Alito on flimsy evidence. Following your links, I find Ornstein declaring this:
ReplyDeleteCongress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito's colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce -- and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the "Constitution in Exile."
Whatever it is, it's not judicial restraint.
I call that a proper understanding of the Commerce Clause, myself.
It is so common as to have become a cliche that presidents appoint people to the SCOTUS and then do not experience the performance they thought they had ordered. What actual evidence is there that Alito would not exercise independent judgment?
I call that a proper understanding of the Commerce Clause, myself.
ReplyDeleteI agree. That is not a good example Ornstein used. I'm also in favor of reeling in the painfully overbroad Commerce Clause, which more than anything else has enabled the Federal Government to stick its claws in things which were clearly intended to be reserved for the states (nobody speaks on that issue more powerfully, by the way, than former Vt. Governor and fervent States Rights proponent Howard Dean).
But Ornstein is a hard-core conservative and lover of John Roberts and even he thinks Alito goes too far on executive deference issues. There is 15 years of Alito jurisprudence which shows extreme views of deference to executive power. There isn't much that bothers me about his nomination beyond that - but especially now, that bothers me a huge amount.
It is so common as to have become a cliche that presidents appoint people to the SCOTUS and then do not experience the performance they thought they had ordered. What actual evidence is there that Alito would not exercise independent judgment?
I think it's more likely with Roberts than Alito. Once you've been writing extremely ideologically stable judicial opinions for 15 years, your views are pretty entrenched and he just doesn't strike me as the type to allow Washington social pressures to change that.
Miers makes much more sense in this regard.
ReplyDeleteI think it explains everything on Miers. If George Bush wants anything, he wants a hypnotized, reverent slave on the Supreme Court ready to endorse everything he does, and really, there is nobody this side of Hugh Hewitt who is more reverent of George Bush than Harriet Miers. That she could have sat in the O'Connor seat made it that much more valuable.
Ambition countering ambition doesn't seem to work the way Madison intended when Party comes before Constitutional responsibility,
I think you're being a little unfair to Madison here. You are starting to see some conservatives in Congress express some serious disapproval over the fact that the White House thinks it can treat Congressional laws like door mats to walk all over. A 65% popularity rating and a super-jumpy wartime climate (combined with fears of an attack on DC where they all live) made them quite passive for the last few years, but declining Presidential popularity and some tiny remnants of dignity will, I believe, cause them to find a little more institutional backbone than they've shown. They certainly can't operate with any less.
There is 15 years of Alito jurisprudence which shows extreme views of deference to executive power.
ReplyDeleteBut like what? All I found in the Ornstein piece was criticism that Alito wouldn't let Congress run wild with the Commerce Clause.
Harriet Miers was such an absurd choice, it was obvious she was picked to rubber-stamp everything George Bush has done. But what evidence -- other than Ornstein's hunch -- is there that Alito would do that?
There are a bunch of Alito opinions I've been wanting to read and probably will over the weekend and write about them this week. For now, I'd recommend these:
ReplyDeleteDahila Lithwick’s article in Slate:
In his 15 years on the federal bench, Judge Samuel Alito has yet to rule on a case substantively involving the war on terror. But Alito's votes in pending and future war on terror cases can be fairly accurately predicted. They lurk in dark alleys, near his decisions about criminal rights, immigration cases, and government power. Alito's record in none of those areas bodes well for people who worry about the Bush administration's push for unchecked war powers. . . .
Similarly, Emily Bazelon just wrote about a memo Alito penned on whether there should be any constitutional protection for an unarmed teenage boy shot and killed by a police officer as the youth fled a crime scene. Alito's personal position—that there was no constitutional protection from such conduct—was more extreme than some other Reagan administration lawyers, the Supreme Court's eventual ruling in the case, the dissenters on that Supreme Court, and more than 85 percent of police departments at the time. It's hard to conceive of someone who loves police powers more than the police. But that someone may be our next Supreme Court justice.
Slate article by Robert Gordon contending that Alito’s record is even more pro-Government’s than Scalia’s:
The Alito record holds few such surprises. In the Washington Post, Cass Sunstein 1. examined Alito's dissents and found them "almost uniformly conservative." That's nearly true for criminal matters—just forget the "almost."
In 15 years on the bench, Alito has filed more than a dozen dissents in criminal cases or cases involving the Fourth Amendment right to be free from unreasonable search and seizure. Not one of those dissents urges a position more protective of individual rights than the majority.
A broader survey is even more striking. Consider all those criminal and Fourth Amendment cases in which Alito sat on a three-judge panel and one judge disagreed with the majority. In some, Alito wrote a majority opinion and a colleague dissented; in some, Alito silently joined a majority opinion; and in some Alito dissented. At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn't really an individual-rights case at all; it was the states' rights case in which Alito would have vacated the conviction for owning a machine gun.
So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen's Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government's position. Alito would have upheld the strip searches of an innocent 10-year-old girl, dissenting from the opinion by the well-known civil libertarian Homeland Security Secretary Michael Chertoff.
Alito crossed swords with two Reagan appointees in arguing that a jury shouldn't decide whether a police officer lawfully allowed his men to push to the ground, handcuff, and hold at gunpoint another innocent family. That case was echoed three years later when Alito, this time writing for a majority, found that in the course of an eviction, marshals could reasonably pump a sawed-off shotgun at a family sitting around its living room.
Right, I read all those, and they would indicate that Alito carries the prejudices of the former prosecutor that he is. I, too, would like to read some of Alito's opinions for myself, but for now I don't think the criticisms show how he would rule on Executive v. Legislative cases. And I have increased my approval of him based on his disagreement w/ Roberts on Commerce Clause jurisprudence. Indeed, I was most unimpressed w/ Roberts in that area when he testified at his nomination hearings.
ReplyDelete