Presidentialist Lawyers in Black Robes

Charlie Savage

(This is Charlie Savage again. Here is another cross-post from TPMCafe's book salon. In addition, my first post there earlier this week, entitled "The Cheney Project" prompted a piece about "master narratives" in PressThink. Since I did not cross-post that first posting here, I link to it in case anyone is interested even though it is less legalistic in nature. Thanks again for reading.)

Today I’m going to talk about the Supreme Court, and how the Bush-Cheney legal team’s strategy of picking presidential lawyers to fill court vacancies has been an integral part of the groundwork it has laid for a long-term expansion of White House power. The following information is just a taste of the things that I learned during my research at the National Archives and elsewhere. Much more, with full context and color and detail, may be found in Chapter 11 of my book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

In 2005, when President Bush nominated John Roberts, Harriet Miers, and then Samuel Alito to fill the first two Supreme Court vacancies in a decade, observers outside the executive branch largely evaluated the nominees through the lens of social issues such as abortion rights. Lost amid the hubbub (especially for the first two nominations, which concluded before the warrantless wiretapping program came to light and before Bush issued the torture ban signing statement) was what I believe to be an essential factor behind all three nominations. There was a broad array of prominent and very conservative legal scholars and lower-court judges from which the Bush-Cheney legal team could have selected its nominees. Tellingly, the administration chose all three from a very narrow slice of the conservative legal universe: all three were executive branch legal warriors. They had each spent years marinating in disputes over expanding executive powers from the White House’s perspective, and were thus likely to bring a very deferential attitude to the bench when future lawsuits arose over aggressive claims of presidential authority.

John Roberts got his start as a law clerk to then-Associate Justice William Rehnquist in the 1980-81 term. Rehnquist authored (and Roberts likely helped draft) the most important decision handed down that year. It backed Jimmy Carter’s claim that he had inherent constitutional power to shut down lawsuits that were authorized by a federal statute (the case concerned attempts by businesses to seize Iranian assets as compensation for nationalized property). Later, after young Roberts joined the Reagan administration, he cited this opinion approvingly in several internal memos, and in one memo I found, Roberts demanded that Bruce Fein remove the case from a paper in which Fein had listed it among a “rogue’s gallery” of decisions based on a false constitutional premise. After the 1983 INS v. Chadha decision striking down legislative vetos, Roberts attacked colleagues who failed to interpret the decision in the way that would support the maximum possible result for presidential power. He also endorsed an early version of what became the Unitary Executive Theory, writing in 1983 that “I agree that the time is ripe to reconsider the Constitutional anomaly of independent agencies.” Following Reagan’s invasion of Grenada, Roberts wrote a letter to retired Supreme Court Justice Arthur Goldberg insisting that the unilateral military action was not unconstitutional because the president has “inherent authority in international affairs to defend American lives and interests and, as Commander- in-Chief, to use the military when necessary in discharging these responsibilities.”

Roberts was also a passionate supporter of executive secrecy, once editing out the phrase “freedom of information” from a colleague’s draft and explaining that its use in a positive light might imply support for the Freedom of Information Act. He was especially angry about the Presidential Records Act of 1978, a post-Watergate reform which mandated that all White House records, including confidential advice to the president and with only narrow exceptions for classified material, be made public 12 years after an administration leaves office. He repeatedly, but unsuccessfully, urged a lawsuit challenging the law as an unconstitutional infringement on the president’s secrecy powers.

Later, as an appeals court judge, Roberts voted to re-hear en banc a decision in the Cheney energy task force papers case that had gone against the vice president. In a case involving Bush’s power to dismiss lawsuits against Iraq by a group of Gulf War veterans who had been captured and tortured, Roberts alone on a three-judge panel sided with the president’s claimed power, writing in his dissent that so long as “the President’s interpretation of [the law] is at least a reasonable one,” the courts should defer to it. And in the spring of 2005, as he was interviewing with White House officials for a potential Supreme Court vacancy, Roberts sided with the White House in the Hamdan case, saying that a president need not consult with Congress when setting up military commissions, and that he has the power to declare that the Geneva Conventions do not apply to wartime prisoners he does not want the treaty to protect.

Less can be said about Miers, whose record was far sketchier. She had no prior history in constitutional law before coming from Texas to Washington with Bush in 2001, a deficit that helped conservatives sink her nomination by accusing her of being totally unqualified for the position. But Miers had spent years working for Bush alongside lawyers such as David Addington, surely absorbing their views. She herself said as much. In her final Senate questionnaire before Bush withdrew her nomination, Miers listed, among her chief qualifications to sit on the Supreme Court, the fact that her time as counsel to Bush had given her significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.” And she later added, “My time serving in the White House, particularly as Counsel to the President, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” Bush was looking for a woman to fill Sandra Day O’Connor’s seat, and nearly all the other potential female conservative nominees lacked this one crucial attribute: executive branch bonafides. Perhaps there was more to that nomination than mere cronyism.

After the Miers nomination collapsed, Bush selected Samuel Alito to replace her. Like Roberts, Alito had come of age as a young member of the Reagan Revolution. His internal memos, also at the National Archives, told a similar story to Roberts. While working in the solicitor general’s office in 1984, he argued that high-ranking executive branch officials should be absolutely immune from lawsuits by victims of any illegal actions they undertook while on the job. Later, in the Office of Legal Counsel, he was a prime mover in developing a plan to have Reagan issue signing statements more frequently in order to, as he wrote, “increase the power of the executive to shape the law.” He was also a member of a special brain trust of political appointees that met to develop creative new ways to push Reagan’s agenda. At its Sept. 4, 1986 meeting, the last Alito attended before becoming a federal prosecutor, their topic was discussing ways to turn aside “challenges to executive power.” According to a memo that laid out the day’s agenda, the group looked at such issues as ways to roll back restrictions on a president’s “military power and related emergency powers”; to undermine statutes that set up independent officials within the executive branch who could not be fired by the president; to defend and expand “executive privilege”; to expand the power of the president to enter into “executive agreements” with foreign powers instead of treaties in order to cut out the role of Senate ratification; and to expand the president’s absolute power of “executive discretion in foreign affairs and national security matters.” Also up for discussion that day was “judicial usurpation of power . . . against the executive branch.”

Alito’s record as a judge does not tell us much because executive power disputes do not often come before the Third Circuit. But he still demonstrated that he carried his strong views on presidential power with him when he left the politically appointed ranks. In 1989, as a prosecutor, Alito denounced the 1988 ruling Morrison v. Olson, in which the Supreme Court had rejected the Reagan legal team’s Unitary Executive Theory 7-1, calling the ruling an endorsement of a “congressional pilfering” of presidential power. Eleven years later, at another Federalist Society Convention shortly after the 2000 election, Appeals Court Judge Alito gave another address reaffirming his support for the Unitary Executive Theory, even though, as he acknowledged, the theory, by freeing the president of many checks and balances, “can be used to accomplish things that most probably would not favor.”

Shortly after Alito was confirmed to the bench, he dissented from the Supreme Court's Hamdan decision, which represented the greatest setback to the Bush-Cheney legal team’s efforts to free the commander-in-chief from a need to obey laws and treaties. Critics of the administration have celebrated Hamdan as a definitive repudiation of this aggressive view of presidential power. But the critics have tended to overlook a critical factor. Only five of the nine justices on the new-look court disagreed with the White House. The average age of the five justices in the majority was greater than 72 at the time Hamdan was handed down, while the average age of the four justices in the minority was less than 59. Given the realities of the human life span, either Bush or some future president, one or two election cycles from now, will have ample opportunity to get that fifth vote. Hamdan may turn out not so much the final word as the last hurrah for the traditional view of checks and balances on presidential power.