Parsing Alito, part 1
Well, the hearings are over; what did we learn about our nominee for the Supreme Court? Quite a lot, really, although it takes a great deal of work. Alito certainly made clear that he has virtually no concept of his own culpability in his actions, but he did make sure to sidestep the question in all of his "answers" to the Democratic Senators who asked him about his judicial philosophies. He even treated Arlen Specter--a Republican!--to some of the same treatment early on. Let's listen in:
SPECTER: Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.
ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.
Um, what? Let's review: Specter initially asked Alito if he agreed with the ruling in Griswold, a precedent-setting case involving privacy. That seems like it should have prompted a simple "Yes, sir" or "No, sir" from Alito, but instead, Alito spent several minutes detailing his interpretation of the 4th Amendment to the Constitution. Specter, amazingly for a Republican these days, asked a follow-up, trying to pin Alito's response down to the actual case to which Specter had referred. Alito, though, once again responded extremely obliquely: "I agree that Griswold is . . . understood . . . as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment." Let's forget the inelegance (or near incoherence) of his diction and focus on the fact that he still didn't answer any part of the question!
This was hardly the only time he made noises that sounded intelligent but were ravingly irrelevant. When Specter asked him shortly following the above exchange to evaluate the seeming permanence of Roe v. Wade as a precedent in our culture and how that would affect his decision-making once on the bench, Alito decided to discuss what he called an analogous situation--Rehnquist's acquiescence in treating Miranda (made famous by innumerable cop shows) as settled precedent, even though Rehnquist originally didn't like the ruling. Specter, trying vainly to make the connection between Alito's response to his question, then posed another seemingly simple question:
SPECTER: How would you evaluate the consideration of Roe's being embedded in the culture of our society?
Not that complex, is it?
Alito, though, would not be deterred from making it difficult, even when Specter tried desperately to get an actual answer:
ALITO: I think that Chief Justice Rehnquist there was getting at a very important point.
SPECTER: Do you think he was right?
ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there. I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions...
Do you get the feeling that Alito doesn't want to admit that Miranda is a settled precedent, let alone Roe? Heck, he can't even bring himself to discuss Roe when asked point blank, instead choosing to go off on some tangent regarding a completely irrelevant case, and he can't even form a favorable or unfavorable opinion on that one!
One of the most important and damning issues facing Alito in his quest to become confirmed are his statements regarding the power of the President. He has repeatedly gone on record as believing that the President has, or worse, should have, the power to effectively nullify Congressional actions. One method by which the President can do this, according to a memo Alito wrote while serving under President Reagan, was through the heretofore informal, and clearly extra-Constitutional, Presidential "signing statement" whereby the President would make his personal ideas about laws known. Apparently, Alito believed that the President doesn't have to execute any Congressional acts he doesn't agree with, even after he has signed them into law. Specter tried to discover whether Alito still adhered to that belief:
Specter: Is that really true when you say the president's views are as important as Congress?
Alito: I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised. And in that memo, I said, This is an unexplored area, and here are the theoretical questions that -- and, of course, they are of more than theoretical importance -- that arise in this area. That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes. And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: There are difficult theoretical interpretive questions here, and here they are. And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.
Ok, class, can anyone tell me if Sammy said "yes" or "no"? Of course, Alito said neither, but in his refusal to respond to the question as asked we get the true answer. Alito thinks that the issue of whether or not the President can choose to execute the laws of the country--in other words, do his job--is still open! Alito said, under oath, that there are "theoretical interpretive questions" about whether the President has to obey the Constitution! How can this man even be a judge, let alone be considered for the Supreme Court?
More to come, unfortunately . . .
SPECTER: Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.
ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.
Um, what? Let's review: Specter initially asked Alito if he agreed with the ruling in Griswold, a precedent-setting case involving privacy. That seems like it should have prompted a simple "Yes, sir" or "No, sir" from Alito, but instead, Alito spent several minutes detailing his interpretation of the 4th Amendment to the Constitution. Specter, amazingly for a Republican these days, asked a follow-up, trying to pin Alito's response down to the actual case to which Specter had referred. Alito, though, once again responded extremely obliquely: "I agree that Griswold is . . . understood . . . as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment." Let's forget the inelegance (or near incoherence) of his diction and focus on the fact that he still didn't answer any part of the question!
This was hardly the only time he made noises that sounded intelligent but were ravingly irrelevant. When Specter asked him shortly following the above exchange to evaluate the seeming permanence of Roe v. Wade as a precedent in our culture and how that would affect his decision-making once on the bench, Alito decided to discuss what he called an analogous situation--Rehnquist's acquiescence in treating Miranda (made famous by innumerable cop shows) as settled precedent, even though Rehnquist originally didn't like the ruling. Specter, trying vainly to make the connection between Alito's response to his question, then posed another seemingly simple question:
SPECTER: How would you evaluate the consideration of Roe's being embedded in the culture of our society?
Not that complex, is it?
Alito, though, would not be deterred from making it difficult, even when Specter tried desperately to get an actual answer:
ALITO: I think that Chief Justice Rehnquist there was getting at a very important point.
SPECTER: Do you think he was right?
ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there. I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions...
Do you get the feeling that Alito doesn't want to admit that Miranda is a settled precedent, let alone Roe? Heck, he can't even bring himself to discuss Roe when asked point blank, instead choosing to go off on some tangent regarding a completely irrelevant case, and he can't even form a favorable or unfavorable opinion on that one!
One of the most important and damning issues facing Alito in his quest to become confirmed are his statements regarding the power of the President. He has repeatedly gone on record as believing that the President has, or worse, should have, the power to effectively nullify Congressional actions. One method by which the President can do this, according to a memo Alito wrote while serving under President Reagan, was through the heretofore informal, and clearly extra-Constitutional, Presidential "signing statement" whereby the President would make his personal ideas about laws known. Apparently, Alito believed that the President doesn't have to execute any Congressional acts he doesn't agree with, even after he has signed them into law. Specter tried to discover whether Alito still adhered to that belief:
Specter: Is that really true when you say the president's views are as important as Congress?
Alito: I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised. And in that memo, I said, This is an unexplored area, and here are the theoretical questions that -- and, of course, they are of more than theoretical importance -- that arise in this area. That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes. And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: There are difficult theoretical interpretive questions here, and here they are. And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.
Ok, class, can anyone tell me if Sammy said "yes" or "no"? Of course, Alito said neither, but in his refusal to respond to the question as asked we get the true answer. Alito thinks that the issue of whether or not the President can choose to execute the laws of the country--in other words, do his job--is still open! Alito said, under oath, that there are "theoretical interpretive questions" about whether the President has to obey the Constitution! How can this man even be a judge, let alone be considered for the Supreme Court?
More to come, unfortunately . . .
posted by bryduck at 9:09 AM
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