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Thursday, January 19, 2006
 
Will Congress Act to Limit Presidential Powers?

The Senate Democrats have begun to speak out against Judge Samuel Alito, whom, this blog has noted before, is going to be bad news for America.

CNN notes:
The Democrats said they believed Judge Samuel Alito would fail to check what they view as the president's inappropriate expansion of executive power.

"I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy," Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said during an address at Georgetown University.

Leahy devoted much of his speech to the recent acknowledgement by Bush that he authorized no-warrant eavesdropping on Americans in an effort to combat terrorism.

"At a time when the president is seizing unprecedented power, the Supreme Court needs to act as a check and to provide balance," Leahy said. "Based on the hearing and his record, I have no confidence that Judge Alito would provide that check and balance."

Fellow Democrat and committee member Sen. Richard Durbin of Illinois also will announce his intention to vote against Alito, according to the text of a speech he is to deliver at Northwestern University School of Law in Chicago, Illinois.

"Based on his record, I'm concerned that Judge Alito will not be willing to stand up to a president who is determined to seize too much power over our personal lives," Durbin will say, according to the text.

Another Democrat on the committee -- Sen Edward Kennedy of Massachusetts -- raised concerns about Alito's nomination in light of what he said were "unprecedented claims by the White House for sweeping expansions of presidential power that are grave threats to the rule of law."

"A justice must have the courage and the wisdom to speak truth to power -- to tell even the president that he has gone too far," Kennedy said.

Two other Senate Democrats also joined the Judiciary Committee members in opposing Alito: Sens. Barbara Mikulski of Maryland and Max Baucus of Montana, according to The Associated Press.

Democratic Sen. Ken Salazar of Colorado also issued a statement Thursday saying he will vote against Alito, giving the same reasons as the committee Democrats.

Sen. Ben Nelson of Nebraska, one of the most conservative Democrats in Congress, has announced that he will vote to confirm Alito, according to the AP, "because of his impeccable judicial credentials, the American Bar Association's strong recommendation and his pledge that he would not bring a political agenda to the court."

The Republicans, however, control a 55-seat majority caucus in the Senate, and moderate Republican Arlen Specter has announced that he is in favor of the nominee. Given the amount at stake in this nomination on the subject of executive power, the Democrats must filibuster the nominee. However, the Washington Post , in "More Democrats Say They Will Oppose Alito" reports:
A procession of Democratic senators, including two who supported the confirmation of Chief Justice John G. Roberts Jr., said yesterday that they will oppose the nomination of Judge Samuel A. Alito Jr. to the Supreme Court. They warned that he would not provide a judicial check against the expansion of presidential power or be properly vigilant about protecting the rights of ordinary Americans.

The mounting Democratic opposition underscored the sharp partisan divide that has developed over Alito's nomination, after Roberts was confirmed with 78 votes and solid bipartisan support. But although Democrats appear increasingly united in their opposition to Alito, they remain divided over whether to pursue a filibuster against the nomination


The New Republic (registration required) has come out swinging against the nominee noting:
More important in our view are the central questions of the confirmation hearings: namely, Alito's views about congressional and executive power. We were especially troubled by Alito's vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce. Indeed, in his hearings, Alito emphasized that, in his view, Congress needs to explicitly identify the effects of its laws on interstate commerce for them to pass constitutional muster. Alito reaffirmed his view that the Supreme Court's 1995 decision striking down the federal ban on guns in schools was a constitutional "revolution"--a development he seemed to view as positive. And he refused to say that all of the Supreme Court's Commerce Clause decisions of the past 50 years are "well-settled precedents," allowing only that "most" of them are settled. Showing little of Roberts's emphasis on the importance of judicial deference to Congress, Alito raised fears that he would join Scalia and Thomas in overturning a host of federal laws. After all, many of the cases upholding congressional power during the last 50 years are arguably inconsistent with the original understanding of the Constitution; and, if Alito is willing to deny Congress the power to regulate machine-gun possession, it's not unreasonable to fear that he might deny Congress the right to regulate drug possession or protect the environment.

And then there is executive power. Alito was questioned extensively on his views about the theory of the "unitary executive," which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential "signing statements," which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature's intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress's explicit wishes. As tnr Legal Affairs Editor Jeffrey Rosen argues this week, Alito might join advocates of unchecked executive power, such as Thomas, who argue that the president can do whatever he likes in the war on terrorism, despite the opposition of Congress and the lower courts. As the Bush administration's rejection of congressional efforts to restrict domestic surveillance and torture suggests, the prospects of an imperial presidency unrestrained by the courts or Congress could be grave.

Executive power is not the area in which Alito falls short, but at the moment, it is the most important.