[Mb-civic] Alito may be the worst choice - Robert Kuttner - Boston
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Sun Jan 8 07:15:08 PST 2006
Alito may be the worst choice
By Robert Kuttner | January 8, 2006 | The Boston Globe
AT THIS moment in American history, it would be hard to find a worse
Supreme Court nominee than Samuel A. Alito Jr. His ideology captures
everything extremist about the Bush administration. If confirmed, Alito
would serve as Bush's enabler. He would give Bush effective control of
all three branches of government and the hard-right long-term dominance
of the high court. His confirmation or rejection will depend on the
gumption of the Senate Democratic leadership and independence of a few
Alito, who would replace the moderate Sandra Day O'Connor, has never
hidden his ultra-conservative views. Given the administration claims of
an extra-legal presidency, what's most disturbing is the handy
convergence of Alito's own conception of executive power and that of Bush.
Citing the wartime powers of the president, Bush has asserted his right
to ignore the legislative mandate of Congress in allowing the military
to torture prisoners, the government's prerogative to spy on Americans
without a court warrant, to treat not just foreigners but US citizens as
''illegal enemy combatants" who lose the constitutional rights of
criminal defendants, and to incarcerate such persons indefinitely. Soon,
some prisoners at Guantanamo will have been behind bars longer than any
German POW during all of World War II.
Presidents do have extraordinary wartime powers, but this president
asserts a state of permanent warfare, implying permanent erosion of
liberty and democracy. Last week, signing a bill banning torture in
interrogations that was forced on him by senior Republican senators,
Bush asserted a concept never imagined by the Constitution's framers or
permitted by any court -- a ''signing statement" claiming his right to
interpret a law in his own fashion and to disregard aspects of it that
he doesn't like.
It takes an independent judiciary to balance needs of liberty against
claims of executive power in national emergencies. But Alito's views of
the imperial presidency are almost perfectly in sync with Bush's.
Alito's apologists insist that his views from the mid-1980s, when he
worked at the Reagan White House, do not reflect his current conception
of the law. But in a speech to the Federalist Society in November 2000,
while a sitting appellate judge, Alito claimed almost limitless powers
for the presidency and criticized other courts for limiting executive
power. ''The president has not just some executive power," he declared,
''but the executive power -- the whole thing."
Oddly, while Alito favors an almost monarchic executive, he believes the
federal government has limited powers to protect the health and safety
of Americans or safeguard the environment. Alito and and his compatriots
in the Federalist Society are critical of the Supreme Court's holding
since 1937 that Congress, under the Constitution's commerce clause, may
regulate to assure everything from a safe and healthy workplace to
honest financial markets. According to University of Chicago professor
Cass Sunstein and the watchdog group People for the American Way, Alito
has written the largest number of dissents of any judge sitting on the
conservative Third Circuit Court of Appeals, and over 90 percent of his
dissents were more conservative than those of his colleagues.
With the Bush administration running roughshod over individual rights,
Alito has tended to support prosecutors and corporations over individual
citizens and employees, in cases involving civil liberties, civil
rights, workplace rights, and reproductive freedom. In 1985, he wrote
that he thought the Constitution ''does not protect the right to an
abortion," flatly contradicting Roe v. Wade. And with corruption
scandals festering in Washington, Alito conveniently forgot his pledge
to recuse himself from cases in which he had a personal financial interest.
Despite the repeated setbacks to the Bush administration and its allies
and Alito's own far-right record, most observers expect him to be
confirmed. Blocking Alito would take a filibuster supported by at least
41 senators. Though the Democrats have 45 senators (counting independent
Bernie Sanders), the Senate Democratic leadership frets that a
filibuster would divert attention from other Republican woes, might make
Democrats look obstructionist, and might lead Republicans to use the
so-called ''nuclear option," abolishing filibusters on judicial nominations.
Yet, in their weakened condition, it's not clear that Republicans could
muster the votes to go nuclear. Moderate Senate Republicans may just
welcome a chance to distance themselves from Bush's extremism -- if
Democrats lead. Alito epitomizes everything dangerous about George W.
Bush. Unlike Bush, he would not be gone in three years. With some
leadership and profiles in courage, we may yet be spared an extremist
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