I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, December 30, 2005

Sam Alito and Deference to Executive Power

The Anonymous Liberal has an excellent post up documenting the efforts by the Bush Administration to pack the Supreme Court not with conservatives on social issues (about which Bush seems to care very little), but instead, with those who believe in virtually absolute judicial deference to Executive Power (about which Bush cares very much). And the importance of this issue in the upcoming Supreme Court confirmation hearings of Samuel Alito is self-evident:

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.

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