Judge Alito and Executive Power

Sandy Levinson

The initial response to his nomination revolved almost entirely (though not exclusively) around the implications, should he join the Court, for the maintenance of the legal regime regarding abortion signified by Roe v. Wade. Opponents emphasized the possibility that he would vote to overrule a decision that he clearly believes was illegitimate when issued in 1973; supporters either applauded that possibility or proclaimed his fidelity to the purported “superprecedent” of Roe, given that many following decision affirmed its basic holding. Spector is probably the most avid supporter of Roe among the Republican senators, but it seemed doubtful that that would be enough to wean him from loyalty to his fell Republican George W. Bush. It is not clear that this will be the case in the new post-NSA world.

What explains Alito’s nomination? It is clearly not that he has expressed grave doubts about Roe v. Wade. One could reel off at least a dozen of plausible nominees who share that hostility. Nor was he nominated because he is generally protective of the rights of the religious and skeptical of the Establishment Clause doctrines associated with Justice William Brennan. There are many other potential justices who share that view as well. Indeed, if challenging Roe and upholding the claims of Evangelical Christians were Bush’s (or Karl Rove’s) main concerns, there literally could have been no better nominee than 10th Circuit Court of Appeals Judge Michael McConnell, a former professor at the Universities of Chicago and Utah who was warmly supported by many liberal law professors (including myself) when the Senate considered his nomination in 2002 (when he was delayed by Democrats who were then in the majority) and then in 2003, when he was confirmed.

So one has to explain Alito’s nomination against the background fact that by any plausible account McConnell would have been a more distinguished nominee with easier prospects of confirmation. Key to any answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the “Commander-in-Chief” Clause of Article II of the Constitution. Dick Cheney has apparently been obsessed since his own service as Gerald Ford’s Chief of Staff with returning the presidency to the “imperial” status that was, he thought, the victim of Watergate. For him the Bush Administration is about rolling back what are perceived as illegitimate incursions on raw presidential power.

This concern helps to explain John Roberts appointment as Chief Justice. Recall that then-Judge John Roberts gave the Administration a major victory in the D.C. Court of Appeals in the Hamdan case literally the week before he was nominated to the Supreme Court. He will, of course, have to recuse himself when the Court hears the case on appeal, as it voted to do on November 7, but there can be little doubt that there will be other similar cases dealing with the scope of executive power. Roberts is likely to be a dependable ally of the President. There is also the important detail, ignored by almost all of the press, that one of Roberts’s prerogatives as Chief Justice is the ability to appoint, without any checks from his colleagues or the Congress, federal district judges to the Federal Intelligence Surveillance Court and then federal circuit judges to serve on the three-member court of appeals from decisions of the FISC. As University of Pennsylvania Law School Professor Theodore Ruger has importantly demonstrated, Chief Justice Rehnquist was prone to appoint conservative Republicans to serve on that Court, which is the first line of defense against overreaching by the Executive in wiretapping and other forms of surveillance. One can only hope that Roberts will be less partisan in his own appointments to the Court, though, unfortunately, this issue was not broached at his own hearings.

But the Administration needs ever more votes on the Supreme Court. From their perspective, they suffered a defeat in the various cases in 2004 dealing with treatment of detainees at Guantanamo and elsewhere. Only Clarence Thomas accepted an argument similar to those made by the German (and many would add “Nazi”) legal philosopher Carl Schmitt during the 1920’s and ‘30s that the Chief Executive (or “dictator”) has basically unlimited power during a time of emergency. It is true that he reached this conclusion by reading the 2001 Authorization for the Use of Military Force in as capacious a way as humanly possible. One suspects, though, that he would be equally open to the Article II arguments that are also being made by the Administration with reference especially to the President’s power as “Commander-in-Chief” not only of the armed forces but also of America’s vast security apparatus.

Antonin Scalia, the other justice often picked out for special adoration by the Republican right, in fact wrote an eloquent dissent in the Hamdi case, which involved an American citizen incarcerated within the United States. He emphasized the necessity for congressional authorization before access to a write of habeas corpus can in effect be denied. It may in its own way be wishful thinking to view Alito as a clone of Scalia. issue. It may be just as likely that one should instead speak of “Thomalito” instead of “Scalito” with regard to the major issue before the Court, and the nation, both now and in the foreseeable future, which is the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary.

To be sure, if the Administration has the commitment to Executive branch aggrandizement that I am describing, one might think that an even better nominee would have been Fourth Circuit Judge Michael Luttig. But Luttig is in fact too visible; he has written too many opinions that allow easy identification of his views with those of Justice Thomas. (It is true, of course, that Luttig expressed what can only be described as cold fury at the current manipulations of the Padilla case by the Administration. They had, after all, basically sworn to the Fourth Circuit that he was a menace to the nation who must be kept sequestered from any normal judicial process, and the Circuit Court accepted the argument,. Now the Administration is like Emily Litella, saying “never mind” and wishing to remove Padilla to a civilian court in Miami to be tried on quite ordinary criminal charges. That Luttig may be furious at the Administration does not at all mean, of course, that he does not adhere to his view that the President does possess basically unlimited power when he perceives someone as the kind of threat Padilla had been described as being.) In any event, Alito is far more the “stealth” nominee in this regard than Luttig would ever have been. The Third Circuit simply doesn’t have the array of relevant opinions on national security issues, not least because the Administration explicitly places as many such cases as possible in the conservative-dominated Northern District of Virginia and then the Fourth Circuit Court of Appeals, secure in the knowledge that it will rarely lose. But it is wildly unlikely that the justice-pickers were indifferent to Judge Alito’s likely proclivities in balancing presidential powers, ostensibly to save the nation, against the civil liberties of a discrete, and often highly marginal and individual.

This makes it essential, obviously, that every member of the Senate Judiciary Committee, led by Senator Spector, grills Judge Alito in the hearings. He must be probed on his views of Article II, including the Commander-in-Chief Clause and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President essentially to do whatever he wishes so long as there is a good faith belief that it is “defense” of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the “amputated Constitution” should give us all pause, and we should find out what kind of constitutional doctor Samuel Alito would be on the Supreme Court..

Had Alito been nominated two years ago, many of these questions might have sounded “academic.” In the aftermath of the disclosure of memos written within the Department of Justice justifying the President’s “inherent” right to torture and then, more recently, of Bush’s own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic.

Some observers are throwing around the idea of impeaching George W. Bush. For a variety of reasons, that is unlikely to happen. We are almost certainly be stuck with Bush until 2009. But we are not stuck with having to ratify the would-be-king’s choice of his courtiers. Samuel Alito is undoubtedly very bright, and he is probably as pleasant a person as many of the stories make him out to be. But there is also a very high likelihood that he has been chosen to assist in the overall project of executive aggrandizement, and no senator should vote to confirm his nomination unless he or she is absolutely assured that that is not the case. The stakes are simply too high to allow any deference at all to this president (and vice-president), whose hunger for power, if tolerated, will transform us into a country that none of us should wish to live in.