George W. Bushs relentless attack on the separation of powers,
most recently laid bare in a December 16 New York Times
story that he has been eavesdropping on Americans without a court
order, shifted the critical focus of Judge Samuel Alito Jr.s
Supreme Court confirmation hearings drastically: where Alito stands
on overweening presidential power has suddenly emerged as the
preeminent issue. Period. Alito must be rejected should he refuse
to state his opinion about executive supremacy or claim agreement
with Bushs approach to the constitutional separation of
powers. And remember: Im the guy who argued in this column
that we should regard Alitos nomination with an open mind
Alito a Chance," This Just In, November 4, 2005).
of presidential power may sound esoteric and technical, especially
when compared to the more hot-button "culture war" issues
abortion, church-state separation, affirmative action,
gay marriage, gun control, and the death penalty that have
occupied Supreme Court confirmation hearings for the past three
decades. Separation of powers is not a mere "issue"
that can be influenced over time under our existing structure
of government. Separation of powers is our existing structure
of government, an essential tenet underlying our continued existence
as a free country. Lets be clear: with the Alito hearings,
the potential transformation of the presidency into an elected
monarchy hangs in the balance.
lent fresh urgency to the question of executive supremacy, which
is why Alito is obligated to state precisely where he stands on
this all-important matter. Just as worrisome as Bushs domestic-spying
activity, for example, is his recent jujitsu move on torture:
when, after much resistance, he finally agreed to sign the anti-torture
statute forced on him by Republican senator John McCain of Arizona
and a bipartisan congressional coalition, he issued a "signing
statement" warning that he would construe the act "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." Interestingly, Alito devised the concept
of a presidential "signing statement" as a young attorney
in the Reagan administration, thus enabling presidents to spin
how they intended to interpret a statute. Bush spun this already
dubious principle all the way out, reserving the right to ignore
the congressional statute, and the courts too, if in his sole
judgment he believes that torture is in the national interest.
This may not have been Alitos intent, but Alito should not
be afforded the luxury of refusing to answer questions about presidential
power in this instance or any other merely because
a case involving this principle might come before the Supreme
Times and Senator McCain forced Bush to give due warning of where
he is headed. Unless we maintain a clear majority of Supreme Court
justices prepared to join Congress and the rest of us in fighting
an imperial presidency, Bush and his successors might prevail.
Reasonable people can disagree on an assortment of highly contentious
issues, but not on whether the Constitution must be protected
from a wrecking ball.
all three branches of government take an oath of office promising
to "protect and defend the Constitution of the United States."
Betrayal of that oath is an impeachable offense for a sitting
president. Shouldnt it also be a disqualifying condition
for a Supreme Court nominee?