Alito and Executive Power

Dahlia Lithwick over at Slate makes the argument about Bush's High Court nominees that I have been making for some time. That the President is trying to stack the Court with judges who defer to executive power. Lithwick takes the argument where I have thus far been unwilling to go. I think its likely that she is right, but the evidence in the case of Alito is scant, which is precisely what is so scary.

My fear is that we are all snoozing through an elaborate plan to pack the court for the Bush administration's war on terror. What if all the obsessive talk about whether candidates are for or against overturning Roe v. Wade is a strategic head feint? What if I am right, and Samuel Alito is confirmed to the Supreme Court without ever substantively answering a question about torture, enemy detentions, the rights of foreigners, or civil liberties during wartime?
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This president—for reasons that hardly warrant repeating here—doesn't really want to be remembered as the guy responsible for the court that overturned Roe. (Although he certainly wants us to think he wants to be remembered as that guy.) No, Roe is not what keeps George W. Bush awake nights. What he wants to be remembered for is winning the war on terror. He wants to be seen as the president who carried the great torch of democracy into the world's darkest corners. And he believes—of this I am certain—that the courts are standing in his way.

I have written before that the arc of his Supreme Court nominations can best be explained by his desire to pack the courts for all of the Hamdan, Hamdi, and Padilla cases to be heard by the courts for years to come. Think about it: Roberts, Miers, and Alito each have a long track record of endorsing executive power. Each seems highly likely to strongly support the president's claims to virtually limitless executive authority in wartime. The Bush administration saw that claim repudiated by a margin of 8-1 in Hamdi. And the president won't let that happen again.

It won't. How do I know? In his 15 years on the federal bench, Judge Samuel Alito has yet to rule on a case substantively involving the war on terror. But Alito's votes in pending and future war on terror cases can be fairly accurately predicted. They lurk in dark alleys, near his decisions about criminal rights, immigration cases, and government power. Alito's record in none of those areas bodes well for people who worry about the Bush administration's push for unchecked war powers.

Robert Gordon has written in Slate, for instance, that in his survey of the criminal and Fourth Amendment cases Alito heard as an appeals court judge, he adopted the position most supportive of the government every time. Justice Antonin Scalia is a conservative who has crafted a healthy jurisprudence of doubt about limitless government powers. Alito, on the other hand, is a former prosecutor who has seemingly never met a search, seizure, warrant, or arrest he couldn't love.

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Which brings us to Alito's record on the rights of immigrants and foreigners. His views on this score were illuminated last week by documents released from his 16-month tenure as a deputy assistant attorney general in the Justice Department's Office of Legal Counsel. In one memo, Alito signed off on an FBI plan to collect fingerprint cards of Iranian and Afghan refugees living in Canada. He suggested that the program was constitutional because these refugees were nonresident immigrants of another country, thus freeing the FBI from abiding by court decisions that barred the agency from spreading "stigmatizing'' information about U.S. citizens. Alito simply feels that nonresident immigrants of other countries have no due process rights under the Constitution. The Washington Post last week quoted Martin Redish, a constitutional law professor at Northwestern University Law School, arguing that Alito's logic would likely support the Bush administration's current policy of CIA interrogations in secret European prisons as well.

Despite the Bush administration's urgings to deny review, the Supreme Court recently agreed to hear the next big war on terror case, Hamdan v. Rumsfeld. Justice Sandra Day O'Connor, author of perhaps the most famous words in the post 9/11 struggle between the courts and the executive—"[a] state of war is not a blank check for the president"—will not be on the court to decide it. Samuel Alito, who has made a judicial career out of writing, signing, and endorsing blank checks—will.

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The courts, and specifically the Supreme Court, have been willing to push back against the executive's relentless power grab, albeit by a sometimes narrow margin. If Judge Alito is unwilling or unable to talk about his positions in this area of law, we should assume, based on his record, that he would rubber-stamp the administration's citizen detention, habeas corpus, and torture policies. If that is the case—and his confirmation becomes a referendum on the acceptability of such policies—he would, and should, fail to be confirmed by a large bipartisan majority.

I was advocating the position Lithwick pushes here adamently prior to the Alito nomination, and I think it is likely still true. But this time Bush has picked someone with no record in that matter. It was obvious with Miers and Roberts, but Alito is a tougher bird to figure out. While I think Lithwick is probably correct, I'm not certain to what degree the evidence she cites for Alito applies. I'm less convinced this one isn't actually about equality or business interests, but the questions of Presidential power should not be dropped. Getting to the bottom of that question is of utmost importance.