Alito: No

Is the abortion debate thats circling around Supreme Court nominee Sam Alito a stalking horse to distract Democrats from a more important issue? One that goes to this administration’s anxious determination to gather more power in the executive branch?
It looks that way. And so far Alito’s hearings have given us more of the same Dumb Democrats Tricks. Can we get these guys on Letterman so they can lay down for a national television audience?
In a back and forth – they call it a colloquy in Washington – with Sen. Ted Kennedy and Pat Leahy, Alito was asked his views on a “unitary executive.” Sounds sort of benign. Given Alito’s views on executive power – like Justice Roberts, he likes “side letters” and other legal mechanisms to preserve executive power – it’s not.
In essence, a “unitary executive” is one who holds the power to run the country. Period. Kennedy restricted himself to legal scholar questions about independent government agencies like the Federal Elections Commission or the Federal Communications Commission which are created and funded by Congress but which, ultimately, do the president’s bidding. That’s too bad. Because Alito’s response, just as limited in a law professor kind of way wasn’t reassuring. “Things can not be managed in such a way that interferes with the president’s exercise of his power – on a functional – taking a functional approach.”
Hmmmm. In response to questions about legal restraint on the president, Alito says no one is above the law. Then he says, no one is below it either. Hmmmm.
UPDATE: Former Democratic Vice Presidential nominee John Edwards is using the phrase “stand up” in his argument against Alito. Interesting. Even more interesting, in his arugment, he puts Alito’s belief in executive branch power ahead of the “choice” argument.
In this day and age – whether you think it’s a war on terror or a subtle campaign to abridge individual rights in the name of facing a faceless and changing enemy who we may never conquer – a little back and forth over independent government agencies is not really what’s at stake here. Choice may be the issue that keeps Democrats on the edge of their seats – oh, and dividing the party along, duh, gender lines – but it’s hard not to worry that the Bush administration has bigger fish to fry.
Writing in the New York Times magazine over the weekend, Noah Feldman started to spell out what might well be at stake with Alito’s nomination: The Supreme Court’s ability to check executive power. And guess what? He blames Congress. Who, of course, have spent the Alito hearing seeing if he’ll do their job for them. Heartening, huh?

Feldman writes a piece that’s long, long overdue. Ask anyone who’s ever talked to a lawmaker who’s voted for a piece of legislation they believed to be unconstitutional. The courts will take care of it, is what they say. You wanna get cynical fast? A Congressman who votes for a law he knows is illegal is a pretty good introduction. It happens a lot. Take a look at the ins and outs of a small piece of a much larger bill that passed and got signed into law last month: It makes it a felony to “annoy” someone on-line. Yeah. That’ll stand up. The author? Sen. Arlen Specter – the very guy leading the Alito hearings and a former prosecutor.
Feldman, God love him, takes Congress to task for – even before 9/11 – lying down in the face of presidential power grabs, of neglecting its oversight function and generally taking the political equivalent of a long (oh, say 25 year) lunch hour. He’s right to do so.
The “unitary executive” is a perfectly fine intellectual concept when it comes to government agencies. Congress, as Feldman points out, loves taking credit for the good things the agency does (dolling out federal cash for Homeland Security initiatives, for instance) but hates getting the blame (FEMA..). Not a lot of harm is done and many presidents – actually most presidents – staff government agencies with people who actually have some vague idea of what they’re doing.
But when the expansion of executive authority means the ability to eavesdrop on citizens without warrants and use the information gathered in those calls to arrest, harass or prosecute those same citizens, when it means flouting the international agreements that have long protected U.S. military personnel from torture and mistreatment, when it means parsing horrible behavior to sanction mistreatment, not torture, as an interrogation tactic, it’s a different matter all together. When the question is about holding men – U.S. citizens and others – for years in jail without telling them what they’re accused of, the questions are much more pressing. They go to the heart of what this country is supposed to stand for. And when Congress enacts legislation to prevent that behavior and the president exempts himself, a unitary executive is a man who – to borrow Alito’s words – is neither above or below the law; he considers himself to be the law in the name of his cause. The result: We are a nation that has decided to use terror to fight terror. We – despite our uniform protests to the contrary – are no better than those we claim to fight. And that’s not just George Bush’s fault.
Now, I will stand next to no one in my staunch belief that Roe v. Wade should be the law of the land and that a woman has a right to end her pregnancy if she sees fit. And I am troubled by the Democrats’ inability – on this, as with so much else – to stand firm on this issue. But I am far more troubled by the idea of a nation that would stoop to using the tactics of its sworn enemy – torture among them – to win its battles. And I don’t think that a court with Justices Roberts and Alito will be as opposed to those legal bits of legerdemain as the good judge is telling the U.S. Senate he will be. A unitary executive is one whose powers are not limited by Congress. And that’s troublesome.
That’s why Feldman’s piece is so important. It points a big fat finger at Congress for not doing its job. For not exerting its rights. For not looking out for individual rights – whether it’s choice or due process – as it is charged to do.
Now, there’s a chance that with a court made up of John Roberts, Sam Alito, Antone Scalia, Clarence Thomas – my, how the names role off the tongue – might force Congress to be a lot more responsible to stand up for itself, to actually pass laws that will stand up to judicial scrutiny. But, really, do you want to take that chance? I don’t. Alito: No.