For some time, I considered Ted Kennedy the embodiment of all that is wrong with American politics. I viewed the senator as a gun-grabber, a dynastic establishment Democrat, a socialist that sought to collectivize the economy and trample individual liberty.
I still believe that Kennedy is all these things. I would not vote for him myself, nor endorse his incumbent candidacy in an election. His voting record still stinks, especially on spending.
It is thus a mark of scary times that I found myself in such agreement with so many words, concerning such important issues, that came from Kennedy’s mouth on the second day of the confirmation hearings for Supreme Court nominee Samuel Alito.
For a good couple minutes, the Bay Stater really shined. Even this anarcho-libertarian had almost nothing to quibble with for that whole time. It was astonishing.
"Judge, in just the past month, Americans have learned that the president instructed the National Security Agency to spy on them at home,u201D Kennedy said. u201CAnd they’ve seen an intense public debate over when the FBI can look at their library records. And they’ve heard the president announce that he has accepted the McCain amendment barring torture. But then just days later, as he signed it into law, the president’s decided he still could order torture whenever he believed it was necessary: no check, no balance, no independent oversight.u201D
Warrantless military surveillance and torture — these are not lightweight issues. Nor is the notion that the president apparently considers himself above all Constitutional and statutory limits on his power.
I am not so nave as to think that there is no partisan element to this line of questioning. But I am frankly glad that a senator is talking about them, even if it is a bit unfortunate that it is Kennedy who is doing the talking.
u201CSo, Judge, we all want to protect our communities from terrorists,u201D Kennedy continued. u201CBut we don’t want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life. We need an independent and vigilant Supreme Court to keep that from happening, to enforce the constitutional boundaries on presidential power and blow the whistle when the president goes too far.u201D
Wow! Can the president ever go too far? In today’s conservative lingo, it is u201Cjudicial activismu201D when the courts do anything the right doesn’t like — even when it is presidential activism that they are challenging.
Kennedy continued, u201CCongress passes laws, but this president says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don’t think so. But we need justices who can examine this issue objectively, independently and fairly. And that’s what our founders intended and what the American people deserve. So, Judge, we must know whether you can be a justice who understands how to strike that proper balance between protecting our liberties and protecting our security, a justice who will check even the president of United States when he has gone too far.u201D
I might take issue with the idea that there can be a u201Cbalanceu201D between liberty and security. Freedom and security from the government are one and the same. I get the impression that most people, when they discuss such a u201Cbalance,u201D are referring to the false sense of security for which Ben Franklin warned us not to trade our liberty, lest we deserve neither.
But here was what had me rubbing my eyes in disbelief:
u201CChief Justice Marshall was that kind of justice when he told president Jefferson that he had exceed his war-making powers under the Constitution.u201D
Yikes! Kennedy thinks Thomas Jefferson was stretching the bounds of the Constitution. Obviously, the Senator himself doesn’t think much of the Second and Tenth Amendments, among others, but it is nevertheless refreshing to hear the third president taken down from his pedestal and put in his place.
It gets better:
u201CJustice Jackson was that kind of president (sic) when he told President Truman that he could not use the Korean War as an excuse to take over the nation’s steel mills.u201D
Holy smokes! Did Kennedy just side with prudence against Democratic President Truman’s power to seize the nation’s steel industry during war? How many conservatives would be so astute to bring up Truman’s unconstitutional wartime despotism? How many even know about that incident? How many would care?
u201CChief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O’Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.u201D
We are dealing with central questions of executive power here — executive secrecy, the effective suspension of habeas corpus, nationalization of industry. Am I really seeing what I think I am?
Kennedy began to wrap it up:
u201CSo I have serious doubts that you’d be that kind of justice. The record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials. And your record shows that, even over the strong objections of other federal judges — other federal judges — you bend over backward to find even the most aggressive exercise of executive power reasonable.
u201CBut perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of powers on the rights and liberties of individual citizens.u201D
I, too, have doubts that Alito will be the kind of justice that stares down the executive on excessive wartime measures. I too am disturbed that Alito and his legions of conservative sycophants seem to have few problems with Alito’s philosophy of executive supremacy and a Republican monopoly on all three branches of the federal government that has enabled such intolerable excesses in administrative power.
Kennedy even implied that his concern was non-partisan: "[W]e need to know whether the average citizen can get a fair shake from you when the government is a party, and whether you will stand up to a president — any president who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty; whether you will ever be able to conclude that the president has gone too far.u201D
Any president? I’ll believe it when I see it. Still, it is nice to hear.
Kennedy posed a very good question: "Now, in 1985, in your job application to the Justice Department, you wrote, u2018I believe very strongly in the supremacy of the elected branches of government.’ Those are your words, am I right?u201D
Alito slickly answered, u201CIt’s an inapt phrase, and I certainly didn’t mean that literally at the time, and I wouldn’t say that today. The branches of government are equal. They have different responsibilities, but they are all equal and no branch is supreme to the other branches.u201D
When asked if he changed his mind, Alito said he did not, that he had been unclear in his words. Kennedy did not budge when he intoned, u201CJudge, quite frankly, your record shows you still believe in the supremacy of the executive branch, Judge Alito. I believe there is a larger pattern in your writings and speeches and cases that show an excess of almost single-minded deference to the executive power without showing a balanced consideration of the individual rights of people.u201D
Again, I am aware that Kennedy is a career politician, a partisan, and a social democrat. But on this last question, it is not as though the Republicans offer much of an alternative. After all, President Bush teamed up with Kennedy pre-9/11 to push through one of the most monstrous expansions of national education policy, the No Child Left Behind fraud. On health care, corporate regulations, farm welfare, social programs, and the whole lot of pork, graft and deficit spending, Bush and the Republicans have proven to be just as bad as or worse than my greatest fears about Kennedy-style economic policy.
But if Bush tries to nationalize some industry for this war, will Kennedy actually be the one standing athwart history, yelling “Stop”? Will he really do so in several years if a Democrat is the one channeling the legacy of Truman? Is this what we’ve come to? Kennedy as a brake on the imperial presidency? I shudder.
Kennedy expressed concern that the judge had held that U.S. Marshals could not be held liable for aggressive treatment of a family of dairy farmers who lost their property in a civil case, and had apparently believed that a search warrant in one drug case was justifiably used not just to search the premises but the people inside, including in the strip-searching of a ten-year old girl.
Such grave abuses of civil liberty should be discussed in every presidential cycle and on every day in between. As should the torture, the detentions, the spying, the entire war on terror. This is the stuff that strikes at the heart of American freedom, threatening finally to push our country over into the pre-Magna Carta days of Divine Rule by the Sovereign.
In America an infection is spreading that poses to sprout into the total state. Such issues as monetary, education and health care policy have not lost a scintilla of significance, and it is discouraging to say the least that both parties appear set on allowing the regulatory-welfare state to resume in swallowing up the nation.
But the most pressing matters of warrantless searches and torture need to be discussed now. And constantly, until we restore the semblance of civilization that we had only several years ago. Would it be that we were even debating torture, it would be unsettling enough. That we’re not even debating torture — that it is hardly discussed — is worse.
Ted Kennedy is a statist, and I am certainly not holding out too much hope for him as a consistent or non-partisan champion of freedom. But at least he took the time to mention these frightening developments in policy. That the media are more concerned with the vague remarks Alito made about abortion in a short exchange with Senator Arlen Specter is quite a disappointment. Republican judges always say the same non-committal stuff on abortion — Roe v. Wade and other court decisions are precedent, bla, bla, bla. This, too, is worth discussing, but there’s really nothing new there, and it’s highly unlikely the policy will change any time soon. The topic of unchecked executive power should be of import to all Americans and the entire world. But on Tuesday night, I had a lot of trouble even finding much discussion on Kennedy’s comments about torture, surveillance, and the imperial presidency — much less an entire transcript of the hearings. Kennedy’s bit was the most engaging portion of the confirmation, but all the red- and blue-state commentators can discuss is Alito’s typical Republican evasiveness on the abortion question, which, like nearly all Republican judicial remarks on the topic, was clearly designed not to alienate either the center or the conservative base.
How sad it is that we have come to the point that we have to rely on Ted Kennedy to be the voice of reason on some of the most fundamental issues of the day. How frightening it is to be agreeing with Ted Kennedy and disagreeing with nearly the entire rightwing on these issues, all while most of the talking heads ignore them nearly completely. It is not a reason to excuse the senator’s terrible record of voting and advocacy. But it is a sign of interesting, and disturbing, times.
Anthony Gregory [send him mail] is a writer and musician who lives in Berkeley, California. He is a research analyst at the Independent Institute. See his webpage for more articles and personal information.