Sam Alito is now into the second day of hearings before the Senate Judiciary Committee. My general impression is that he is doing pretty well. We know the general strategy for getting this rite of passage, and it consists of a lot of confessions of piety (I believe in precedent! I believe in the right to privacy!), combined with a strict refusal to answer any interesting questions. I fondly pray and fervently hope that someday judges will feel free to engage in honest and open discussion of constitutional questions. But I don't expect it. In the current environment that would be frankly impossible. So we have to depend on outside sources for the interesting stuff.
One question that has almost eclipsed abortion as a topic is the scope of Presidential powers, and by extension, of the powers of government in general. Jonathan Turley, a competent and interesting judicio-pundit has this argument against Alito:
The confirmation hearings for Judge Samuel Alito will focus greatly on his stated opposition to Roe v. Wade. The obsession with abortion in American politics has had an anaerobic effect on past confirmation hearings, sucking the air out of other issues. For Alito, this may have the welcomed effect of obscuring a more troubling question from his past writings and cases: Alito's extreme views of government authority over citizens' rights.
Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito's cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.
In my years as an academic and a litigator, I have rarely seen the equal of Alito's bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.
Real Clear Politics links to Turley's piece, and to this reply by Paul Mirengoff, at Powerline.
I find Turley's distortion of Alito's record troubling. Turley relies first on positions that Alito took as a Justice Department employee, for example, the brief he filed for the government in Garner v. Tennessee, involving the shooting of a boy who refused to stop when ordered to be the police after robbing a home. But Alito was simply arguing the government's position, as was his duty as a lawyer. Moreover, three of the nine Supreme Justices agreed with the government's position (we don't know whether Alito did), so it's difficult to claim it was beyond the pale.
Alito has been a judge for 15 years, so if he holds extreme positions about government power, Turley should be able to demonstrate it through the Judge's opinions, without resorting to his work as an advocate.
Look to the full articles for the case analysis. I will weigh in only to point out that, under the separation of powers, it is not expected that Congress will check the President by means of legislation. The system of checks and balances which the founders set up to preserve the three branches works by making each branch dependent upon the others to do its business. Congress can check the President by refusing to authorize funding, or by refusing to do such things as confirm appointees or ratify treaties. Congress cannot depend on the courts to fine the President or order his arrest. The question of the President's powers in the pursuit of national security will be decided by his support in the legislative branch.
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