Two views contra Alito

The other day, I said that despite reservations about Alito's record, I believe he can and should be confirmed because (as a Washington Post editorial argued) a qualified nominee should not be rejected because he reflects the ideology of a duly elected president.

Here are two interesting arguments to the contrary, both from people who are not wild-eyed radicals.

The New Republic (regigstration req'd) makes a two-part argument:

More important in our view are the central questions of the confirmation hearings: namely, Alito's views about congressional and executive power. We were especially troubled by Alito's vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce. Indeed, in his hearings, Alito emphasized that, in his view, Congress needs to explicitly identify the effects of its laws on interstate commerce for them to pass constitutional muster. Alito reaffirmed his view that the Supreme Court's 1995 decision striking down the federal ban on guns in schools was a constitutional "revolution"--a development he seemed to view as positive. And he refused to say that all of the Supreme Court's Commerce Clause decisions of the past 50 years are "well-settled precedents," allowing only that "most" of them are settled. Showing little of Roberts's emphasis on the importance of judicial deference to Congress, Alito raised fears that he would join Scalia and Thomas in overturning a host of federal laws. After all, many of the cases upholding congressional power during the last 50 years are arguably inconsistent with the original understanding of the Constitution; and, if Alito is willing to deny Congress the power to regulate machine-gun possession, it's not unreasonable to fear that he might deny Congress the right to regulate drug possession or protect the environment.

So far, I see mostly good news here. As far as I'm concerned, curbing Commerce Clause overreach would definitely a good thing. But a Scalia-type justice denying Congress the right to regulate drug possession? Did the editors at TNR sleep through Gonzales v. Raich?

And then there is executive power. Alito was questioned extensively on his views about the theory of the "unitary executive," which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential "signing statements," which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature's intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress's explicit wishes. As tnr Legal Affairs Editor Jeffrey Rosen argues this week, Alito might join advocates of unchecked executive power, such as Thomas, who argue that the president can do whatever he likes in the war on terrorism, despite the opposition of Congress and the lower courts. As the Bush administration's rejection of congressional efforts to restrict domestic surveillance and torture suggests, the prospects of an imperial presidency unrestrained by the courts or Congress could be grave.

Although the decision is not easy, our concerns about Alito's lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito's confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.

If Alito is confirmed, we hope that he proves to be practitioner of restraint rather than a justice in the mold of Scalia and Thomas. But the stakes for the Court are too high, at the moment, for us to vote our hopes rather than our fears.

The second point, I think, is well-taken, and it is echoed by Matt Welch at Reason.com. In particular, Welch points out that Alito's deference to the executive could backfire on some of the conservatives who support him now if the Democrats recapture the White House.

A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team's in charge. Because some other team will be in charge some day, and they will find their own unique opportunities to abuse whatever power they inherit.

George Bush and Dick Cheney have been very deliberately accumulating and building power in the executive branch since taking the oath of office. On just his 10th day in office, Bush let us know that "I am mindful not only of preserving executive powers for myself, but for predecessors as well."

The remark was played up as a comical Bushism—somewhat inaccurately, since he was justifying the decision not to reverse one of Bill Clinton’s pardons. But as we've come to learn, it was a dead-sober glimpse into the core Bush/Cheney governing philosophy of rolling back what the veep recently described as the "erosion of presidential power and authority ... at the end of the Nixon administration."

Says Welch:

[T]he deal-breaker for me was this mealy-mouthed response to Sen. Russ Feingold (D-Wisc.), who is consistently one of the only members of the Judiciary Committee to approach nomination hearings with the seriousness they warrant:

SEN. FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute. Is that correct?

JUDGE ALITO: Well, I don't want to—I don't—I want to be very precise on this. What I have said—and I don't think I can go further than to say this—is that that situation seems to be exactly what is to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do is explicitly—has been explicitly disapproved by Congress. So his own taxonomy contemplates the possibility that—he says that there—this—there is this category, and cases can fall in this category, and he seems to contemplate the possibility that that might be justified.

But I'm not—I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in a way I would consider any legal question. I don't think I can go beyond that.

I don't feel comfortable with a Supreme Court unclear on the notion of whether the president can legally break the law; the existence of such a deferential bench is a standing invitation for Bush and his successors to do just that.

Today these crimes will be justified in the name of being "serious about fighting the war"; tomorrow they will be justified in the name of being "serious about protecting our children." Which is why yesterday is almost too late to finally begin showing some seriousness about protecting the constitutional liberties that neither of the major political parties respect when they hold the keys to the White House.

I think Alito's confirmation, at this point, is pretty much an inevitability. And maybe Welch is overreacting. But at the very least, it's something to think about. And, I would say, to worry about as well.