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January 09, 2006

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Erm, which one...I'll pick this one. As much as I'd like to see an actual give and take, I sense a charade. Alito is no dummy, so why give an answer that can give Senators cover for opposing him without looking obstructionist? Unless the genius minds that are the Democratic members of the Judiciary committee can find a way to entrap him into saying "You're goddamn right I ordered the code red!"

Did you guys notice a band of conservative Christians broke into the hearing room and annointed the panel's seats in the dead of night? Not making this up but I can't remember where I read it. I will look into it.

Ah -- the story is from The Wall Street Journal and is quoted in this BradBlog post.

love this quote from that annointing story, Jeremy,

"God…is interested in what goes on" in the nomination hearing, Rev. Schenck said.

One has to wonder why, if God's interested in interferring in the confirmation of a Supreme Court Justice, he didn't just strike down the folks who drafted the First Amendment and save himself a few centuries worth of headaches?

anoint

My pet peeve is just dying for more coffee right now.

Gary, are you posting as Slarti again?

Jeremy Osner: Did you guys notice a band of conservative Christians broke into the hearing room and annointed the panel's seats in the dead of night?

How did they get them to bend over?

Slartibartfast -- aargh. D'oh!

Right now I'm reminded of how much Senator Brownback annoyed me during the Roberts hearing.

I want to check and see if I understand conservative jurisprudence in this post 9/11 world:

Premise 1: Alito should get onto the Court because he's sure to overturn Roe v. Wade.

OK, that's a given. Conservatives have wanted abortion recriminalized since Roe was decided in 1973.

Premise 2: Alito should get onto the Court because he supports expanded Executive Powers.

Premise 2 is the one I have some trouble with. Is everything conservatives once said about smaller government, less intrustive government, and not trusting government now generally inoperative? Or is this sudden taste for letting the President decide his own limits of authority only operative as long as a Republican is President?

I'd be interested in knowing how a Supreme Court should write a decision that limits the need to obey Constitutional law to one party and not the other.

I wonder if the country has been softened up enough that the Court can simply say it outright ("Republican Presidents, being inherently more legitimate than non-Republican Presidents, are therefore entitled to determine for themselves which laws to obey and which ones to ignore.") or if it would have to use code words of some sort.

These opening statements are pretty useless. That said, the Dems aren't pulling their punches on the executive power stuff so far....

Kennedy:

In an era where the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling.

Durbin:

In speeches to the Federalist Society, you've identified yourself as a strong proponent of the so-called unitary executive theory. That's a marginal theory at best, and yet it's one that you've said you believe.

This is not an abstract debate. The Bush administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism.

Under this theory, the Bush administration has claimed the right to seize American citizens in the United States and imprison them indefinitely without a charge.

They've claimed this right to engage in torture even though American law makes torture are a crime.

Less than two weeks ago, the White House claimed the right to set aside the McCain torture amendment that passed the Senate 90-9.

What was the rationale? The unitary executive theory, which you've spoken of.

They're always like that of course, but I don't recall them being quite so harsh with Roberts. And it's not only the usual suspects like those two, Leahy and Feingold--Schumer of all people is talking about how "the president is not a king".

The thing that really scares me about Alito is his opposition to one-man-one-vote. That principle seems so basic to me that I can't understand how a person can be said to support the idea of democracy if the/she doesn't also support the idea of one-person-one-vote.

    "Republican Presidents, being inherently more legitimate than non-Republican Presidents, are therefore entitled to determine for themselves which laws to obey and which ones to ignore."

or, even simpler: "Whatever, as long as my team wins."

Did any of the Senators bring up the one-person-one-vote issue that Lily comments on?

Not so that I saw. I don't see why they would either, the issue is a mess, and is much more likely to make the Senator look like a boob than anything else.

I don't see anything in this Alito post about signing statements or anything in the signing statements post about Alito. As Mark Schmitt and this Post article from last week say, Alito more or less invented signing statements during the Reagan administration, and Bush (as the Republicans have with so many things lately) carried the idea much further than anyone else had previously.

CaseyL: "Premise 2 is the one I have some trouble with. Is everything conservatives once said about smaller government, less intrustive government, and not trusting government now generally inoperative?"

Yes, until a Democratic President is elected.
See the transitions to and from the Clinton administration.

"Or is this sudden taste for letting the President decide his own limits of authority only operative as long as a Republican is President? "

Of course.

"I'd be interested in knowing how a Supreme Court should write a decision that limits the need to obey Constitutional law to one party and not the other.

I wonder if the country has been softened up enough that the Court can simply say it outright ("Republican Presidents, being inherently more legitimate than non-Republican Presidents, are therefore entitled to determine for themselves which laws to obey and which ones to ignore.") or if it would have to use code words of some sort."

Code words. And if you think that contortionists and acrobats can do strange things with their bodies, you ain't seen nothing yet, until you watch the GOP people denounce the next Democratic president.

To be fair, Alito can be both a strong proponent of executive authority, and be generally fair, objective, and devoted to rule of law. The balance of power between executive and legislative is not really a rule of law question, it's a meta-issue that is poorly spelled out in the constitution, and in practice depends on a lot of unwritten customs. So the Republicans aren't so much disagreeing w/ the Democrats here, as focusing on other parts of his record. In other words, they're using the standard debater's trick of answering with what sounds like a contradiction but is in fact an answer to a slightly different question.

What really distubs me is those inane signing statements. Alito's idea that a judge should consider the executive's stated understanding of the bill he helps enact is without merit. Signing statements, unlike committee reports and floor statements, serve no purpose except to help the executive influence the judiciary, and are therefore unreliable.

Legislative history is valuable because it is presumed to be primarily intended as persuasion. We can learn something about what a law was intended to do, by looking at how its backers tried to sell it to other legislators, and especially at how they answered specific questions about what this law would and wouldn't do. Even if they were lying, the legislators who listened to them may have based their votes on that understanding. At the very least, the backers don't dare describe the bill in terms that will lose support. So they have to at least somewhat reflect the consensus understanding of Congress. And we can often track specific amendments to a bill to some particular concern raised on the record by an opponent. For these reasons, legislative history is a useful tool in construing ambiguous statutory language.

Signing statements, in contrast, are just hot air. The President can say whatever he wants, and it has no effect whatsoever on whether the bill gets enacted. As Bush just showed, he can even say that the bill means the opposite of what it says. There are no consequences. There is no reason to believe that the signing statement expresses his true reasons for signing. The only reason to make the statement at all, is to influence later courts.

More importantly, signing is itself an empty gesture. "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it." The President's signature does not make the bill a law, it merely indicates that he happens to agree with it. That's nice, but not necessary. Unless he is prepared to veto, he has to carry out even laws with which he disagreed. So his opinion is irrelevant.

Since Alito is not stupid (quite the opposite!) he must know all of this. His adherence to signing statements, therefore, is basically dishonest. OK in an advocate, but he should be prepared to distance himself from the concept as a judge.

Yes, I don't understand why a signing statement from the president would have any more weight than a statement from a legislator made after a bill is passed, which would presumably be completely irrelevant to interpreting the law. The president's statement, which occurs after the bill is in its final form, can't provide any insight into what the legislators may have meant by any unclear passages.

Two main impressions from reading the hearing transcripts today:

1) He won't say whether or not he thinks the anti-torture statute is constitutional as applied to the war on terror. Leahy asked, Feingold asked, Graham asked, and he wouldn't say. You have to look at the statute and the facts, blah blah blah.

Someone really needs to follow up on this. Grill him about it, read off the Article I powers of Congress that justify the anti-torture statute, ask him why he thinks there's any doubt of its constitutionality, etc. etc.

2) Most of the people on that committee have no idea how this is done. Check out Joe Biden's hard hitting questioning.

The censor is blocking any attempt by me to post, as usual.

A reminder for anyone who [LINK DELETED] missed this useful thread.

Another try.

Okay, none of it works.
[even a vague mention DELETED]

November 27, 2005

That's all I'm allowed to say, if that.

Alternatively, since this blog hates me, try searching on the blog for the post in November, 2005, about Alito, posted by Hilzoy. Alito And CAP, November 27th, 2005.

This is so so fun. I'm obviously in a spammer file. Possibly when someone who isn't just home from the hospital, or dealing with death, might want to take responsibility for their blog, this might be fixed? I realize this is trivial. Really. Truly. We all have far more important things going on.

I'll wait, honest.

Last futile try to be helpful here.

Thank goodness Typepad removes the obvious kooks from the comments. At least automation is getting a few things right ;-)

All my comments are getting through, so apparently I am not an automated robot or the Calvinists are correct in that the virtous are predestined to succeed.

Gary, couldn't you just post the url? I'm willing to go to the trouble to paste it in the browser if it is from you (not this one, you gave enough hints to find it, but for future reference)

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