Senators in Need of a
Spine
EDITORIAL, NYTimes on
the Web, January 26, 2006
Judge Samuel Alito Jr., whose entire
history suggests that he holds extreme views about the expansive powers of the
presidency and the limited role of Congress, will almost certainly be a Supreme
Court justice soon. His elevation will come courtesy of a president whose
grandiose vision of his own powers threatens to undermine the nation's basic
philosophy of government — and a Senate that seems eager to cooperate by rolling
over and playing dead.
It is hard to imagine a moment when it would be more appropriate for senators to
fight for a principle. Even a losing battle would draw the public's attention to
the import of this nomination.
At the Judiciary Committee hearings, the judge followed the well-worn path to
confirmation, which has the nominee offer up only the most boring statements and
unarguable truisms: the president is not above the law; diversity in
college student bodies is a good thing. But in what he has said in the
past, and what he refused to say in the hearings, Judge Alito raised warning
flags that, in the current political context, cannot simply be shrugged away
with a promise to fight again another day.
The Alito nomination has been discussed largely in the context of his opposition
to abortion rights, and if the hearings provided any serious insight at all into
the nominee's intentions, it was that he has never changed his early convictions
on that point. The judge — who long maintained that Roe v. Wade
should be overturned — ignored all the efforts by the Judiciary Committee's
chairman, Arlen Specter, to get him to provide some cover for pro-choice
senators who wanted to support the nomination. As it stands, it is
indefensible for Mr. Specter or any other senator who has promised constituents
to protect a woman's right to an abortion to turn around and hand Judge Alito a
potent vote to undermine or even end it.
But portraying the Alito nomination as just another volley in the culture wars
vastly underestimates its significance. The judge's record strongly
suggests that he is an eager lieutenant in the ranks of the conservative
theorists who ignore our system of checks and balances, elevating the presidency
over everything else. He has expressed little enthusiasm for restrictions
on presidential power and has espoused the peculiar argument that a president's
intent in signing a bill is just as important as the intent of Congress in
writing it. This would be worrisome at any time, but it takes on far more
significance now, when the Bush administration seems determined to use the cover
of the "war on terror" and presidential privilege to ignore every restraint,
from the Constitution to Congressional demands for information.
There was nothing that Judge Alito said in his hearings that gave any comfort to
those of us who wonder whether the new Roberts court will follow precedent and
continue to affirm, for instance, that a man the president labels an "unlawful
enemy combatant" has the basic right to challenge the government's ability to
hold him in detention forever without explanation. His much-quoted
statement that the president is not above the law is meaningless unless he also
believes that the law requires the chief executive to defer to Congress and the
courts.
Judge Alito's refusal to even pretend to sound like a moderate was telling
because it would have cost him so little. Chief Justice John Roberts Jr.,
who was far more skillful at appearing mainstream at the hearings, has already
given indications that whatever he said about the limits of executive power when
he was questioned by the Senate has little practical impact on how he will rule
now that he has a lifetime appointment.
Senate Democrats, who presented a united front against the nomination of Judge
Alito in the Judiciary Committee, seem unwilling to risk the public criticism
that might come with a filibuster — particularly since there is very little
chance it would work. Judge Alito's supporters would almost certainly be
able to muster the 60 senators necessary to put the nomination to a final vote.
A filibuster is a radical tool. It's easy to see why Democrats are
frightened of it. But from our perspective, there are some things far more
frightening. One of them is Samuel Alito on the Supreme Court.
|
