The Alito Nomination: The Plot Thickens

Sandy Levinson

Several days ago, I posted a comment suggesting that the Alito nomination was part of a plot designed to reinforce Executive power and that the issue in particular of abortion was designed to serve as a distraction. An article in today's Washington Post that focuses on Adlito's views of executive power offers some support for this view of connecting the dots and explaining, for example, why the relatively obscure Judge Alito was selected instead of the substantially more distinguished Judge McConnell:
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html.

The most important paragraph is the following:

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

Important to whom, one might ask? The first answer is "internal": I.e., one might well view this as supporting the view that Department of Justice lawyers, including lawyers in the Office of Legal Counsel, which is at least as important as any given Federal Court of Appeals, should look to presidential undersanding when interpreting statutes. Only, presumably, in the absence of a signing statement, should any attention be paid to legislative history. Of course, if one is a strong Scalian, then it is not clear why a presidential signing statement should have any more authority than a committee report. Neither, according to Scalia, should be paid the slightest attention. This may suggest that Alito is less of a Scalia clone than has been suggested and that he is in fact more dangerous, at least if one fears Executive supremacy.

The second answer is more "external": I.e., what should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn't ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that's not what Alito means, it's hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer's "clear mistake rule" for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President. It is extremely difficult to label any given legal opinion as truly "frivolous" and therefore a "clear mistake" when prestigious and institutinally well-located lawyers assert it. Such lawyers, of course, are part of the reference group for defining what we mean by a "professional consensus" necessary to establish something as "beyond the pale." It is one thing to accuse a fly-by-night lawyer of making unprofessional arguments. It is quite another to say this of otherwise well-respected and well-located lawyers. Can one really say, for example, that Cass Sunstein has revealed himself to be an incompent lawyer, as opposed to saying simply that one "respectfully disagrees" with his reading of the AUMF or Article II.

The ultimate question, of course, is what happens when the Court tells the President that there is indeed something that he/she cannot do, however much the President believes, in entirely good faith, that it is "necessary" (in some sense of that slippery word) to safeguard some important public value, including national survival. I don't know that Judge Alito has ever spoken to this question directly. It should be enough, though, that there is now fairly dispositive evidence that he was, while in the Reagan Administration, a full-scale adherent of what might be termed the "liberated" (and possibly "unfettered") Executive, and it would be astonishing if the Justice-pickers in the Bush Administration did not believe that this represents his view today.

So, as before, we now need to see what Senator Specter (whose name I consistently misspelled in my earlier posting) will do. If he exhibits some backbone, the nomination is in big trouble. If not, then it will be up to the Democrats. Generally, that sentence does not lead one to feel better about future events.

sandy levinson
Posted 5:46 PM by Sandy Levinson [link]