Wednesday, January 25, 2006

Parsing Alito, part 4

Ted Kennedy has done a great deal of good for this country, and his questioning of Alito is certainly among his better moments. Alito's responses, on the other hand, continue to reveal his incompetence--or at the very least, his skill at avoiding the issues and questions put to him.
KENNEDY: You wrote these words: The president's understanding of the bill should be just as important as that of Congress. With respect to the statement issued by President Bush reserving his right to order torture, is that what you had in mind when you wrote the president's understanding of the bill should be just as important as that of Congress ?
ALITO: When I interpret statutes -- and that's something that I do with some frequency on the Court of Appeals -- where I start and often where I end is with the text of the statute. And if you do that, I think you eliminate a lot of problems involving legislative history and also with signing statements.

So, Sammy, does that mean that you were wrong about what you wrote and you've changed your mind, or that you have absolutely no way to wriggle out from under the awful ramifications of what you truly believe? It's hard to say based on your weirdly irrelevant response.
Our next exchange shows another side to Sammy, as he pontificates on and on (so as to use up Senator Kennedy's time) regarding something that finally wasn't asked of him.
KENNEDY: …why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?
ALITO: Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean. I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power. The second question is: When you have the power that is within the prerogative of the executive, who controls the executive? Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president. Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution.

Now, it is true that Kennedy talked a bit about this concept of the "unitary executive" in the preamble to his actual question, but his question as shown here was pretty straightforward. Sammy's response, on the other hand, went waaaay down the rabbit hole in search of an answer to a question not posed. Let's abstract out the gist of what we have just read, shall we?
Q: Will you do your Constitutional duty?
A: In lieu of answering that, let me describe my interpretation of the idea some have accused me of holding.
For those of you unfamiliar with the process of taking an essay exam when you don't know any of the real answers, this is what high schoolers and college students call "bullshitting"--i.e., talking about something you kinda do know instead of simply fessing up and taking your lumps. Should a member of our most esteemed body of jurists do this in a job interview? I think not. Why is there a question about his unfitness?!


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