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A Faerie's Farthing

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Friday, December 23, 2005

Alito's Tilted Balance

Alito's Tilted Balance

Bush gets permission slips:

Taken together, the memos advised the President that he had almost unfettered latitude in his prosecution of the war on terror. For many years, Yoo was a member of the Federalist Society, a fellowship of conservative intellectuals who view international law with skepticism, and September 11th offered an opportunity for him and others in the Administration to put their political ideas into practice.

...Soon after September 11th, Yoo and other Administration lawyers began advising President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror. The lawyers classified these detainees not as civilians or prisoners of war—two categories of individuals protected by the Conventions—but as “illegal enemy combatants.” The rubric included not only Al Qaeda members and supporters but the entire Taliban, because, Yoo and other lawyers argued, the country was a “failed state.” Eric Lewis, an expert in international law who represents several Guantánamo detainees, said, “The Administration’s lawyers created a third category and cast them outside the law.”


Given his druthers, that's where shrubya would like to be to - outside the law, wholly unfettered by pesky prohibitions and stifling statues. His legal advisors have been all too happy to indulge these imperialist fantasies, arguing that being a war-time president allows him to do anything necessary for the defense of the nation. Torture? No problem! Indefinite detention? Sure! Spying on Americans? Why not; you're the leader!

I don't know when exactly a preternatural deference to the president came into vogue, but this is not a healthy state of affairs for our country. It's alarming, but to be expected, from his own staff. It's despicable when Senators invoke it to seat Alberto Gonzales as the chief law enforcement officer in the land. If it works its way onto the Supreme Court, I think we will find ourselves at a full-blown constitutional crisis. All the Padillas in the world could sue and it wouldn't matter one whit; the Supreme Court crowned boy george once and they could do it again. Only in the future, they might not take the courtesy to label the rule unfit for establishing precedent.

Take the anti-torture amendment, for example. What happens when it is ratified as a law and used as the basis of a lawsuit against the governmet, especially if the case goes to the Supreme Court? Well, a lot of that depends on the make up of the Supreme Court. If the justices believe in checks and balances, the administration would likely be vulnerable to prosecution. But if the court is stacked with justices who believe in carte blanche plenary powers for the executive - especially in a time of war - would he evade accountability? I'm content to never know the answer to that question, but if Alito's nomination is successful, we may find ourselves conducting that ghastly experiment.

Supreme Court nominee Samuel A. Alito Jr. once said that a Supreme Court decision upholding the creation of an independent counsel "hit the doctrine of separation of powers about as hard as heavyweight champ Mike Tyson usually hits his opponents."

Alito's remarks, delivered as an introduction to a 1989 debate sponsored by the conservative Federalist Society, offer a window into his thinking on the separation of powers, an issue that the Supreme Court regularly wrestles with but that seldom came up during Alito's 15 years as a federal appellate judge.

...Alito said the 1988 ruling upholding the law undercut several important doctrines that had protected presidential power "from congressional pilfering."


I wonder if ScAlito would exhibit the same hostility towards "reckless empowerment of the executive branch." Somehow, I doubt it.

Former solicitor general Theodore B. Olson said that Alito's deference to presidential power in both cases is not surprising, given that Alito had served in the Justice Department's Office of Legal Counsel. A key duty of the Office of Legal Counsel is to prevent against encroachments into presidential power, he said.

"He's clearly sensitive to the issue," Olson said, "but as to how he would rule on any given case, I wouldn't draw any conclusions."

But Cass R. Sunstein, a liberal constitutional law professor at the University of Chicago, said that Alito's views are relevant to understanding how he may rule. "It's noteworthy that he shares the view of Justice Scalia, and it suggests that he has a quite broad understanding of presidential power," Sunstein said.


I'm with Cass; for a Federalist Society "strict constructionist," Alito seems quite content to elide some of the Constitution's most salient points. He just doesn't seem too concerned about the "coequal branch" and "separation of powers" edicts explicitly outlined by our founding fathers. Maybe he used the Clif's notes; maybe he just doesn't respect Congress and its primacy in our government.

Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively...

Congress 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.


More from WaPo:

Alito's views on presidential power are significant on several fronts, not the least of which is what deference the chief executive should get to conduct anti-terrorism efforts, legal analysts said. President Bush has claimed the right to try foreign terrorism suspects before military tribunals, an issue that may come before the Supreme Court this term.

...The decision [to uphold the Independent Counsel statute], Alito said, meant that any alleged infringements on the president's power "would be judged by whether, in the court's subjective view at the time, the encroachment went too far."

Justice Antonin Scalia, to whom some of Alito's critics have compared the judge, wrote "a brilliant but lonely dissent" in the case, Alito said, when he remarked that "this is not analysis. It is ad hoc judgment."


Imagine that! Judges...making judgements on a case-by-case basis! If passing "ad hoc judgements" is a distasteful notion to Alito, just what does he imagine a court's role to be? Luckily, he's already told us; notice his comment about "the court's subjective view at the time." There's Alito's perception of the court in one ugly nutshell - it is a changeable body whose rulings and decisions are simply functions of the biases of its current members. I don't know that it's possible to find a more stark admission of judicial activism. And given the nature of his specific biases, we should be very worried indeed.

Even before the news of shrubya's domestic spying broke, an article at The New Republic presciently stated "During the coming days, many people will want to know where Samuel Alito stands on the question of executive power." Thanks to spygate, the entire Senate Judiciary Committee is now among those "many people."

Supreme Court nominee Samuel Alito will have to answer questions about how he views the president's powers in the war on terror, senators said Monday after the White House defended its orders of warrantless domestic spying.

Senate Judiciary Chairman Arlen Specter, R-Pa., and ranking Judiciary Democrat Patrick Leahy of Vermont sent separate letters to Alito telling him they would ask about the president's authority to order warrantless spying at Alito's Jan. 9 confirmation hearings.

"Recent revelations that the president authorized domestic eavesdropping without following the statute that requires approval of the Foreign Intelligence Surveillance Court is but one of several areas where the court's role as a check on overreaching by the executive may soon prove crucial," Leahy said in his letter.


Sorry, Pat, but this situtation is already "crucial." What we have here - besides a failure to communicate - is a boy who would be king circumventing established law and insulating his actions from any oversight by the other branches of government. There is also the added complication that shrubya's duplicity could collaterally damage the integrity of the FISA court; one of the court's judges has already resigned in protest.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

...Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."


I suppose it's only fitting that a Potemkin President would have a Potemkin court, but a lot of judges, especially the ones sitting on the FISA court, don't find the irony at all humorous. Some have even suggested that if shrubya feels entitled to circumvent the FISA court, why not just dismantle it? As Senator Feingold pointed out, the same is true of the P.A.T.R.I.O.T. act - if the administration can just order domestic wiretaps outside of legal constraints, why bother fighting over the legislative authority?

The point is rendered similarly moot if one can just pack the courts with right-wing idealogues who actively endorse an expansive notion of governmental powers, as Alito's history demonstrates.

As a young Reagan administration lawyer, the Supreme Court nominee, Samuel A. Alito Jr., took an expansive view of government law-enforcement powers in numerous cases in which he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released yesterday by the Justice Department.

The documents show that Alito once advised against including a ban on capital punishment for minors, in an agreement by the United Nations Convention on the Rights of the Child.

...While working in the Office of Legal Counsel from 1985 to 1987, Alito also wrote an opinion allowing the Internal Revenue Service to secretly record conversations with taxpayers who were under investigation.

He backed broader authority for the Drug Enforcement Administration to allow agents to set up shell companies to help them conduct undercover operations.

In January 1986, Alito dismissed concerns raised by the FBI that it might be unconstitutional to add to its files the fingerprints of Iranian and Afghan refugees who had sought asylum in Canada. Alito wrote that those who are not US citizens have no constitutional protections.

That month, Alito also raised concerns about a proposed ethics rule that would have barred prosecutors from investigating an individual without a ''good-faith" belief that the person had committed a crime.


A lot of people knowledgable in the minutiae of legal life readily defend Alito's history as simply "advocating for his client." Since he worked for the executive branch, it was his job to be protective of those powers. But I don't buy it. There's nothing about successfully representing a client, even conservative presidents, that necessitates placing oneself to the right of Antonin Scalia.

While Alito goes to conservative places Scalia won't, the more telling point is that Scalia goes to liberal places Alito won't. Scalia has a libertarian streak that can yield surprising results.

...The Alito record holds few such surprises. In the Washington Post, Cass Sunstein 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.

...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.

...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.

Of course, caveats apply. All of the cases are more complicated than short summaries can capture. In any given case, Alito's position often seems reasonable; it is the accumulation of consistent results that surprises. Alito has also written or joined unanimous opinions ruling for defendants or citizens pushed around by police. And in en banc reviews where the entire 3rd Circuit sits, and where his vote has not been decisive, he has joined a few decisions not fixed on the right side of the court. None of this changes the basic point: Scalia's rulings on police power push back against conservative colleagues. Alito's don't.


I guess someone had to take up the "more conservative than Scalia" mantle now that Rehnquist has passed, but I'd have preferred it not be the next candidate for the Supreme Court. Given that Mr. Alito already seems to have quite a reputation as an activist judge, defers to the executive branch and disrespects Congress, this bodes not well. Not well at all.

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