Today (1/8/06), the Senate Judiciary Committee begins its hearing on confirmation of Judge Samuel Alito to take the Supreme Court seat now held by Justice Sandra Day O’Connor. http://news.yahoo.com/s/nm/20060109/ts_nm/court_alito_dc_5
So we might as well get on with our fundamental Doper duty of second-guessing the decisions our elected officials will make:
Should Alito be confirmed?
If he is, what will that mean for the future direction of the SC?
Will anyone try to filibuster?
If so, will the Pubs resort to the “nuclear option” of changing the Senate rules to make judicial nominations unfilibusterable*?
Article on his nomination and confirmation-in-progress: http://en.wikipedia.org/wiki/Samuel_Alito_Supreme_Court_nomination
To my way of thinking, the most troubling thing about Alito’s views is something not really covered in the above articles: The balance of power between the legislative and executive branches. Alito supports a “unitary executive” view of the president’s powers, especially in “wartime”. In particular, he holds that the president’s “signing statements,” personal interpretations he puts into writing when signing a bill, have the force of law. http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html Bush has issued “signing statements” at least 108 times – e.g., when he signed McCain’s antitorture legislation, he wrote that he would abide by the amendment to the extent it was consistent with his duties as Commander in Chief. That’s a mighty big loophole to give oneself, and Alito apparently would be prepared to back him up on it.
I’m a conservative Republican. That said, I think he should be confirmed for the same reason that I thought Clinton’s nominees should be confirmed: because they are qualified and because the president chose them. I honestly support the power of the president to appoint any qualified nominee and have that nominee confirmed, regardless of whether the nominee seems likely to rule in ways that I prefer.
I think that Alito would move the court slightly in the conservative direction. I believe that he will scrupulously apply his judicial, not political, philosophy when deciding cases. I believe that he will be reluctant to find new things in the Constitution, but also reluctant to strike down established precedent.
I do not think that a filibuster will be used to stop his nomination.
I agree with you that his view of the executive power has not been covered extensively. His views are not at odds with past executive practices, I don’t think, nor do they seem to be at odds with the Constitution. It will be interesting to read what he has to say about this during the hearing, because some of GWB’s recent actions have made this a more prominent concern than it would normally be.
I just wish they could dispense with the self-serving open statements by the Senators. Sheesh… we had to listen to those blowhards just a few months ago, and I can’t believe they have anything new to say.
I happen to like Alito’s record and I think the court will be better for having him on it. However, even if I didn’t like him, it’s not my call to make. It’s a perk of being president that you get to decide this within reasonable limits. He’s clearly qualified, so he should sail through the process.
The Democrats won’t fillibuster him. They can’t. He’s not an extremist. He’s not unqualified. Public opinion would be against a fillibuster, so we won’t be seeing one.
First of all I don’t agree that it’s extremist or even dangerous what he was suggesting. But, is that even Alito’s “position” in the first place? He made those arguments in the 1980’s when he was a lawyer for the justice department. Isn’t anything he did then only to be looked at in the context of what was best for his client, the executive branch?
There’s plenty of on the record decisions that Alito has made while sitting on the bench as an actual judge. Why not look at that record? It’s much more clear that then we are viewing his actual opinion on the law, not just him arguing on behalf of a client.
Here is a DOJ memo by Clinton’s counsel, Bernard Nusbaum, on signing statements. I present it not to refute what you said, although I disagree with what you said. It is, IMHO, an interesting and useful introduction to the subject.
But, it is not a position actually taken by all of them. The article said all recent administrations “chafed at the reality” of Congress’ power over the law. Which is perfectly understandable, when a president wants to get something done (which they all do) and Congress is not entirely supportive. But chafing at it is not the same thing as denying it. The memorandum of Clinton’s Bernard Nusbaum, linked above by Crotalus, falls far short of actually supporting the position that a court need give any interpretive weight to the language of a presidential “signing statement”. From the linked memo:
IOW, no, this does not appear to be a position Democratic administrations have taken. Can you provide evidence to the contrary?
Yes, we did. However, Roberts didn’t have much of a record to look at as a judge. He did have more of a record as an attorney arguing cases, so we were forced to look at that. Even so, many people pointed out that just because a lawyer makes a particular argument doesn’t mean that he believes that which he argues. He’s working for a client, and he’s representing the interests of that client, not necessarily his own.
Alito, OTOH, does have a long record as a judge. It just doesn’t seem fair to look back to things he argued as a lawyer in the 80’s when we’ve got a lot more material that is more recent of him acting as a judge when there can be no such confusion.
Election-year politics will, as a general rule, encourage politicians to maximize their public exposure. The vote will be split down party lines and any attempt at a nuclear filibuster will be met in-kind. After the first round of questioning I expect the process to be again delayed by at least one week so that opponents may further research their “concerns”.
No, of course not. OTOH, it does mean that your argument that it is not an extremist position, that it is in fact a “mainstream” position, is a noisome steaming load of crap.
Nice try . . . The “signing statement” legal tactic (if so it can even be dignified) in question was invented by the Reagan Administration (see link above), might or might not have been practiced by the first Bush Admin (no one’s brought a cite to the table yet), apparently was viewed askance by the Clinton Admin, has been practiced most enthusiastically by an administration of highly questionable legitimacy , and in any case, up to this very day has mainly depended for its success on flying low under the public-discourse radar. So you can’t really call it “mainstream” simply by virtue of apparent association with Republican administrations (as distinct from the Republican Party, which as a group appears, so far as we can tell, to be just as oblivious about it as anybody else). You might, perhaps, plausibly call it mainstream by virtue of a general consensus among con-law scholars . . . if such consensus existed . . .
What exactly was Alito’s position on the reach of executive power (especially as would be relevant to issues like wiretapping American citizens without warrants) and when did he express it?
We already have some sense that his track record on abortion is against it and that he will likely work to “incrementally” give states more ability to limit them. He is a religious right’s conservative. But so long as he follows Robert’s lead there and signals that he respects past rulings and “super-precedence” (without committing to upholding anything specific) he’ll not trigger a filibuster. But the public, including many inside the conservative “Big Tent”, is not behind an executive branch having authority to spy on us all without oversight, even in wartime. If he is found to be supporting those rights while a judge, then the public may support a filibuster, or he may even lose in an straight up vote. Just IMHO.
I completely disagree. I simply do not understand the notion that a Supreme Court nominee should be confirmed by the Senate simply because the President nominated him (or her). One would hope that person possesses a suitable list of academic and/or work related qualifications (but apparently even that is not always necessary). The Senate should not merely be a rubber stamp for the President regardless of who the President is or who the nominee is. This is a lifetime appointment to a position of great power and importance. That a candidate be scrutinized closely is appropriate. I doubt the founding fathers made this a Senate constitutional obligation just so they could get some free press.
What I find amazing is people tiptoeing around the obvious. Alito did not get nominated for his brilliant legal mind…he got nominated for his impeccable conservative credentials. Mind you I am not saying he does not have a first rate legal mind…I believe he does and certainly to be a Supreme Court nominee the candidate had better have a pretty stellar resume. Nevertheless there are many fine legal minds out there to choose from. Alito did not get picked at random…he got picked because conservatives felt he would advance their causes.
Remember Harriet Miers, apart from looking like a benefactor of cronyism, was rejected by conservatives almost as much (perhaps moreso) than by liberals because she could not provide a record of her conservative bonafides. Even Bush vouching for her strongly did not do it for them. Once Alito was put forward the political right seemed much happier and you can be sure they (and liberals too no doubt) scrutinized him more closely than he ever will be in a Senate hearing.
Is that enough of a basis for liberals to try and prevent the nomination? Generally I would say no. Of course a President is going to pick a person from “their side” to put forth as a nominee and can’t really be faulted for doing so. Usually it isn’t too big a deal as long as the court has some balance. If Alito was being put forth in Robert’s place (i.e. one or the other) I think he’d be fine. Unfortunately in this case Alito is not just any old nominee but the 800 pound gorilla nominee. Replacing Sandra Day O’Connor the court will decidedly swing to the right. I think the country is ill-served by a noticeably lopsided court. I am a firm believer in the separation of powers and checks-and-balances our founding fathers built into our government. I do not think the public good is served when the pendulum goes too far right or left. The repercussions of this will be felt not for a year or a presidential term but quite possibly for decades.
Sadly I do not think the Democrats have the gumption to fight this one off. They’ll make speeches and then blame anything that is wrong on those in power and point to their earlier speeches to show that they tried to fight the good fight but lost.
For background/context, see also this thread on a theory recently floated by William Kristol and Gary Schnitt, that the Framers intended the president to wield “extralegal but constitutional powers”: http://boards.straightdope.com/sdmb/showthread.php?t=350684 (Background/context only, as Alito is never mentioned, in the underlying story nor the thread; but the theory seems to reflect a general drift of ideas that accords with Alito’s, so far as we can know them, at this point.)
But as for his view on the NSA wiretaps in particular – well, that’s not clear, and there’s no reason to expect it should be, since the story only broke a few weeks ago, and Alito has been a federal judge all that time and the issue has, AFAIK, never come up in his (or any) court, as yet.
, and in any case, up to this very day has mainly depended for its success on flying low under the public-discourse radar. So you can’t really call it “mainstream” simply by virtue of apparent association with Republican administrations (as distinct from the Republican Party, which as a group appears, so far as we can tell, to be just as oblivious about it as anybody else). You might, perhaps, plausibly call it mainstream by virtue of a general consensus among con-law scholars . . . if such consensus existed . . .