He makes me think alito…

I’ve been following the Alito hearings before the Senate Judiciary Committee, and before they send him off to the floor, where I am certain he will receive a healthy confirmation vote, I have some thoughts that have been brewing for awhile.

I admit that even though I am not a fan of this particular president — not necessarily because he is a Republican, but because I think he is reckless and childish — I did not immediately reject Alito out-of-hand. As with John Roberts, I have been reserving judgment on what kind of a Supreme Court Justice I think Alito will be, based on his record and temperment. I have no doubt that he’s a qualified jurist. After all, competent representatives of the American Bar Association testified to that fact today (although the Committee already had their report — I’m not sure why it was necessary to bring them before the Committee…more on this in a bit).

Transcripts are one thing…seeing the testimony on video is another. I thought Alito looked bored and disinterested. Perhaps that’s what we want from a Supreme. But I wanted to see a spark…a smile…even a bit of testiness. Roberts showed us some charm. In her confirmation hearings, Justice Ginsburg spoke with a stong, clear voice that made you feel like you were being scolded by a schoolmarm with a yardstick in her hand. Alito hemmed and hawed, and spoke with a voice devoid of passion. Yes, I want a competent jurist who will be faithful to the constitution…but does he really want the job?!?

Personality aside (contrary to commentary, Alito is certainly no “Nino”), one of the more interesting points of judicial philosophy that came up during the hearings — and really picked up by the media — was this whole business about the “unitary executive theory.” Knowing how much Americans disdain anything smacking of theoretical content, I’m sure this thing flew over the heads of most. But the ears of all of us NPR geeks (and political science Ph.D. candidates) were certainly perked up. “Ooo! A theory! And it’s being mentioned on regular TV! We gotta look into this!”

So what is this theory about? While I am no constitutional scholar (my fields are international politics and political theory), from what I have read and heard I understand that there are two “strands” or “schools of thought” about this. The first is fairly straight-forward and uncontroversial: namely that the President is vested by the Constitution with sole executive authority. In other words, while the other branches of government maintain their rights to check and balance, once they have made their decisions, the rest is within the purview of the president. Thus, Congress should not have a right to interfere in how the President carries our his or her tasks within the Executive branch — by, for example, intervening in the hiring, promotion, or firing of federal officials.

Upon reflection, one can see how this lines between this “uncontroversial” view of the unitary executive gets blurry when we consider the far more controversial view: one that is held by legal scholars (and practitioners) such as John Yoo, who I have chosen here as perhaps the most extreme proponent of what we might call the “absolute unitary executive theory.” Yoo, who is now a professor at the University of California-Berkeley Law School (he previously served in this Bush administration and was a clerk to Supreme Court Justice Clarence Thomas), supports a theory that basically places executive authority under the executive according the constitutional power residing there, regardless of acts of Congress or of the Courts. Thus, in my elementary rendering, if the Constitution empowers the executive within the “Commander-in-Chief” function with executing a war, Congress has no say in how the President does that—torture included.

(For an eye-opening review of Yoo’s latest book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, see David Cole, “What Bush Wants to Hear,” New York Review of Books, Vol. 52, No. 18 (November 17, 2005), pp. 8-12.)

The questioning especially by the Democrats on the Senate Judiciary Committee was certainly sharp on this second point, but the theory itself got lost in more pressing, practical matters about executive authority generally — theory aside. OK, so it’s not surprising that there wasn’t a protracted discussion about judicial theory and philosophy during the hearings – at least nothing that satisfied me very much. The good news is that finally we have moved into something more substantive than the wishy-washy “are you a strict constructionist?” line of questioning…as if that ever meant anything anyway.

Back to the hearings. I already mentioned that I believe Alito was disinterested. And many of his answers to some of the more pressing questions were totally unsatisfactory. I don’t understand how, when a nominee is asked whether he believes Roe v. Wade is settled law, he cites stare decicis. That is precedent, and nothing more. Pressed again on the question of settled law, Alito again brings up stare decicis. So he didn’t answer the question. And even though Lindsay Graham is a former prosecutor, his view of this line of questioning (and especially of the line about Alito’s membership in the Concerned Alumni of Princeton group) was that it was “unfair.” Bah.

Finally, something struck me this evening, as I was watching excerpts of today’s proceedings on the PBS NewsHour: the endorsement of the American Bar Association, which had given Alito a rating of “well qualified” as a judge (they have three ratings: “well-qualified,” “qualified,” and “not qualified.”). I recalled that in 2001, the Bush administration, under the direction here of Alberto Gonzales, “formally ended the American Bar Association’s role as an early arbiter of the qualifications for nominees to the federal bench and the Supreme Court (CNN). According to that account, “The decision was based on the principle that the American Bar Association should not receive a preferential role over all other interested parties,” said [Scott] McClellan. “We welcome their input and they will continue to have an important role in the process.”

This ended a practice that was put in place by the Eisenhower administration. Last I checked, Eisenhower was a Republican.

The Republican leadership in Congress thought that this was a wonderful move:

The Senate Republican leadership sent a letter to President Bush Thursday “to congratulate” him on ending “the special and underserved role” of the ABA in selecting judges.

“While the ABA has been and remains an important organization devoted to improving the quality of legal practice in this country, its decision to increase its focus on politics has undermined its ability to provide an objective review of judicial nominations and justifies your decision,” the letter read (CNN).

Apparently conservatives have frequently accused the ABA of a “liberal bias” in making their determinations, especially given their lukewarm support of Robert Bork during his Reagan-era confirmation hearings, which ended in the defeat of his candidacy to the Supreme Court.

Interestingly, and in a move that seemed to me to be very little-noticed, during today’s hearings, Senator Charles Schumer (D-NY) had this brief exchange with Stephen Tober, the Chairman of the Standing Committee on the Federal Judiciary of the ABA:

SCHUMER: Thank you, Mr. Chairman. I just have a brief question because we’ve heard a lot about the ABA rating, which is something that’s prized and important. Your sheet here that describes it says it describes three qualities: integrity, professional competence, judicial temperament. Is that right?

TOBER: That’s correct.

SCHUMER: So it would not get into what somebody’s judicial philosophy would be. Is that correct?

TOBER: That’s also correct.

SCHUMER: And so, if somebody were very far right or very far left, as long as they had integrity, professional competence or judicial temperament, you would give them – that’s what you would rate them on.

TOBER: Senator, we don’t do politics. What we do is integrity, professional competence and judicial temperament. They are objective standards. And that’s what we bring to this committee.

SCHUMER: And if one standard was – however one defined it, if somebody was out of the mainstream, again, your rating would not give us any inclination whether that was part of it?

TOBER: If the suggestion was that they were out of the mainstream politically, that’s correct. If they’re out of the mainstream in terms of their judicial temperament, we might have a different thought.

SCHUMER: Thank you.

Brilliant.

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~ by de cive on January 13, 2006.

One Response to “He makes me think alito…”

  1. Nice! You know, I think what bothers me most about Alito is that he strikes me as being kind of a dummy. (Great image of Ginsberg, by the way!) He’s too milquetoasty, and a little smarmy. I don’t want his ass interpreting my constitution; I want a firebrand. Plus, in the immortal words of Sideshow Bob, “Princeton?! Glehhhhhh…”

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