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January 02, 2006


That's simultaneously inspiring and terrifying.

Jackmormon: it shouldn't be terrifying. You just do your best and then trust in either God or some rough equivalent.

Cheney, Nixon, and Presidential Power dated 1/06/03, by John Dean

"The executive branch shall construe..in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.." and, "..to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus.."

Today's signing statement.

What constitutional crisis? L'etat, cest moi.

"But I did end up thinking that it and our system of government, together with the kind of allegiance they enjoy, are a considerable human achievement, and one that should not be tampered with lightly; and I mind, in a completely visceral way, attempts to undermine or circumvent it."

That's precisely why I'm reluctant to do anything about the Electoral College (not the last clause, the rest), but I probably shouldn't say, because we don't want to go there just now. Okay, move along now.

Having picked up my passion for the Constitution without benefit of college, and long before my blink-of-an-eye sojourn there, I'm not quite sure where to point to to explain it. "1968-74" pretty much sums up why it seemed mandatory to go backwards, I guess, and as a passsion inextricable from passionate fascination with our history, and history in general, and from desperately needing to know what our civil liberties were, wherefore, why, and how.

"How did we get where we are, anyway?" devotion to history. All pre-high-school in origin -- though, of course, never ceasing thereafter.

Also, the Federalist Papers are mindblowingly awesome, whether at 12 or 47, I'm here to say. (Not to say English common law isn't also; my knowledge of other legal codes and philosophy, be they Napoleonic or Babylonian or Chinese tends to be comparatively thimble size, to be sure.)

Being slow to come to judgement on many matters, I do pronounce that I've been persuaded over time to move from the position that were I in the Senate, I would vote against Alito, to the position that I very much wish for the defeat of his nomination.

However, my crystal ball remains cloudy as to how practically likely it is, and, perhaps even more importantly, what would happen afterwards.

Would the President simply keep sending ever-more wacko nominees to the Senate (I keep having nightmares of Janice Rogers Brown on the Court)?

Would the Democrats and sane Republicans be able to keep up with a game of whack-a-mole?

Would Bush possibly nominate someone more palatable (possible, but hardly to be counted upon, is it?)?

Maybe we'd have a Court with only 8 members until Bush is out, or maybe Justice O'Connor would stay on as the first mandatory draftee Justice. No one knows who else on SCOTUS will fall over tomorrow, of course, and it's hardly unlikely.

Maybe Bush will be impeached. Maybe he'll plow his bicycle in a tree, and President Cheney will nominate himself. I have no goddamn idea.

There's a pretty good argument for playing for time, though. Particularly if it's just until January, 2007, rather than January, 2009.

Meanwhile, we have a weak hand. But I don't do card-playing advice. Go not to wizards, etc., for they will tell you both yes and no.

And I'm worse, I'll give you five answers.

So I read law professors and political operatives, and ponder.

Gary, don't forget the possibility of a recess appointment.

"Would Bush possibly nominate someone more palatable"

Hey, I am wingnut territory, in believing that the entire purpose of Luttig's Padilla decision was to make him palatable if Alito goes down. Yes, I think the decision was disgenuous. Does Luttig have a history of restraining executive power? I can be convinced.
The Dean article should be enough to convince the convincable that this isn't about keeping America safe or terrorism or torture or any other particular crimes or programs or policies. It is about a thirty+ year measured march toward an Imperial Presidency, restrained only by election and impeachment. It is not an easy Constitutional Interpretation to understand. IIRC, the impoundment of funds was one of the articles against Nixon, and the Cheney administration diverted funds from Afghanistan to Iraq, so apparently Congress doesn't even have the "power of the purse."

But it has to be slapped down, harder than Nixon was slapped down. It has been building for thirty years because Nixon was not slapped hard enough.

"It has been building for thirty years because Nixon was not slapped hard enough."

I'll sign up for that.

There never could have been enough Nixon-slapping. And I mean that.

Setting aside my beliefs about capital punishment for a moment of good old Nixon-hating, I only wish we could have hung the son-of-a-bitch.

Hunter Thompson had him pegged.

For the record it's fair to say that Nixon was my first political obsession. Imbibed in in mother's milk, with lessons about about Helen Gahagan Douglas, the Pink Lady.

But at one point by the mid-eighties, well, I won't say I read every book ever written on him, because scholarly monographs count. But I'd say I'd read every major book, and enough minor ones to add up to hundreds. Including every book he wrote, and the memoirs of every major figure who ever served with him, and plenty of the minor ones, down to Manolo's, and up to all of Kissinger's. (To give a clue, my two best sweeties, after being split from both, jointly gave me the then latest Kissinger door-stop for my 1984 birthday present, knowing it would please me greatly, because that's me.)

As I said, obsession, for quite a long time. And before there was the internet, was the library.

Rereading Nixon Oval Office tape transcripts again for hours yesterday may have freshened the red-bloodness a tad, mind.

I dearly wish I could have these transmitted and burned directly into the brain of every American alive today. All of these would be even better. All the rest should go on the web, as well.

Whoops, Bob hit the "Nixon" button. See what happens?

I would vote against Judge Alito also, but I'm not sure how far to go with a memo he wrote as an advocate. I mean, I've argued a signing statement that went my way, and would expect anyone to do the same.

I would guess that Judge Alito will deal with this, and other similar questions, more or less the same way Chief Justice Roberts did: endorsement of Justice Jackson's concurence in Youngstown, commitment to play the judge's role in as dedicated a way as he played the advocate's.

Yes, and say basically all that stuff about being a true believer was just puffing for the job interviews, and that Bush nominated him because of his neutral judicial temperment.

yada yada yada. Where are all these people's "just serving the bosses" pieces that go against the President's philosophy?

Looking forward to a reply to Fried's NYT OP Ed. I see it wasn't behind the subscription wall.

I would vote against Judge Alito also, but I'm not sure how far to go with a memo he wrote as an advocate.


I think this argument, which we've heard a lot of from Alito supporters, ignores the context of Alito's advocacy.

The image it projects is of a private practitioner who just had Reagan walk in as a client one day, and did the best he could to represent his interests in the matter, as though it were a contract dispute of some sort.

Of course that's not what happened. Alito sought a job in the Reagan Administration, fully knowing as anyone would, that it would involve making arguments on essentially political issues. From this I think it is fair to presume that he was not merely acting as a paid advocate, but actually believed in the legal correctness of the positions he took.

This may not be true with respect to all his memos, but I think it's the sensible default assumption until we have strong evidence, including statements by Alito, that it does not hold for some of them. Such statements, in my opinion, need to be fairly explicit, not the sort of mealy-mouthed evasion that nominees typically offer. Otherwise the presumption stands.

I mind, in a completely visceral way, attempts to undermine or circumvent it.

Just curious: Does that visceral opposition apply to any liberal constitutional innovations, such as Roe?

In what way do "liberal constitutional innovations, such as Roe" undermine or circumvent the Constitution?

As regards the possibility of defeating Alito, this WSJ offers some promising reasons for non-pessimism.

Oh, and while anyone should interested should read the whole (extremely short) piece, this just staggered me slightly:

More than half of Republicans polled say they would support his confirmation if they thought he would vote to make abortion illegal, compared with 14% of Democrats.
In fact, I wasn't going to blog the article, but that makes it worth it.

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