The opinion is more than 50 years old, and it is not even binding precedent. But just minutes into the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr., it took center stage and seemed to lay the groundwork for the questions he will face concerning his views on the limits of presidential power.
The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning.
[. . .]
Quoting from the Jackson concurrence and referring to the surveillance program, Mr. Specter said, "What is at stake is the equilibrium established by our constitutional system."
Senator Patrick J. Leahy, the ranking Democrat on the committee, made a similar assertion in noting that Judge Alito would replace Justice Sandra Day O'Connor if he was confirmed. "She upheld," Mr. Leahy said, "the fundamental principle of judicial review over the exercise of government power."
That was a reference to Justice O'Connor's decisive opinion turning back another broad assertion of executive power in Hamdi v. Rumsfeld, a 2004 case in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.
"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Justice O'Connor wrote for herself and three other justices in 2004. She cited one case as precedent for that proposition: Youngstown.
The above is from Adam Liptak's "Focus of Hearings Quickly Turns to Limits of Presidential Power" in this morning's New York Times. It's this morning's spotlight story selected by Randy, Stephanie, Liang, Zach, Brandon and Rachel. And the topic for this entry is Alito. Remember to check your inboxes for today's special edition of the gina & krista round-robin.
Ruth notes John Nichols' "Senators Sould Press Alito on Bush v. Gore" (The Online Beat, The Nation):
Alito will be asked direct questions and he will claim that he cannot answer them for two reasons.
First, in order to avoid broad questions about his legal philosophy, he will claim that he is not able to comment on cases that might come before the court. This is a deliberate dodge, designed not to protect Alito's ability to judge impartially but to avoid revealing whether his ideas are within the mainstream of constitutional interpretation and judicial responsibility.
Second, despite the fact that his proponents would have the Senate and the American people believe that he is a brilliant man with broad executive branch and judicial experience, Alito will claim that he has not seriously considered fundamental questions of law, politics and public policy. This, too, is a deliberate dodge, designed to prevent an examination of how he approaches issues.
If the recent past offers any indication, Alito's refusal to cooperate with the committee will be extensive. When Chief Justice John Roberts faced the committee during his confirmation hearings last fall, he refused to answer more than 60 questions in a single day.
Note that later this morning, Ruth will have a report going up at this site. (Dallas is hunting down links. Thank you for that Dallas.)
Cindy notes Eleanor Smeal's look at "Day One of Alito Hearings" (The Smeal Report, Ms. Magazine):
I sat all afternoon in the Samuel Alito hearings. These are my reactions on small and big matters.
First the setting: The hearing room is arranged so there is very little public seating. The public seats were filled with dozens of people, especially young women, with "No on Alito!" stickers. Also, there were some with "Reverse Roe," "Confirm Alito," "A+" stickers (supposedly for Alito) and "Alito's America" stickers (guns, smokescreens, trampling on "little people") against Alito.
Now on to the substance.
The Republican Senators set the stage for Alito -- Specter may be pro-choice but he did his best to frame the debate for Alito. Senators Brownback and Coburn did not disappoint -- they stressed that this is all about Roe v. Wade. Of course, they are for reversing Roe v. Wade.
The Democratic Senators from the beginning showed this would not be like the Roberts hearing. Over and over again they expressed their concerns about Alito's positions.
Here are some of the highlights: Senator Kennedy (D-MA) warned of an imperial presidency. He said Judge Alito ruled against individuals over 80 percent of the time. Kennedy reminded everyone that he chaired Alito's confirmation hearings in 1990 for the Circuit Court of Appeals. Alito had promised under oath to recuse himself in cases involving Vanguard -- Kennedy won't let Alito forget this. Finally, Senator Kennedy said that Republicans demanded answers from Harriet Miers -- we should do no less with Alito. He was so strong, Senator Grassley (R-IA) (the next Senator to speak), began his opening statement with "I have a much more positive view of Alito."
From what went on inside the hearings, to what went on outside, Martin notes Chris Lugo's "Protesters Gather at Senate Majority Leader Frist's Tennessee Office to Say 'No Alito'" (Tennessee Indymedia):
Nashville, TN: On the opening day of nomination hearings concerning right-wing conservative Samuel Alito to the Supreme Court of the United States, about fifteen protesters came to Senate Marjority Leader Bill Frist's office in Nashville to hold signs and hand out flyers about issues related to the separation of church and state and expressing concerns about a woman's right to choose to have an abortion, two key issues which they are concerned a right wing Samuel Alito will tip the balance on if confirmed to the Supreme Court. The protesters gathered on the busy road in front of Frist' office for the duration of the evening rush hour.
Cynthia Bennet, president of Nashville NOW, said "I want our Senator to know we are against nominee Alito. The decisions he made in the past as a lawyer for Reagan show that he has no consideration for Equal Rights, Women's Rights, or the Right to Privacy. This is outrageous. This nominee is no comparison to Justice Sandra Day O' Connor. I want Frist to know that there are people in Tennessee who want him to vote no."
Cliff Fiedler, the current president of Americans United for Separation of Church and State, was one of the organizers of the protest, other Nashville organizations which have taken a stand on the Alito nomination include the: NAACP, Sierra Club, People for the American Way, NARAL Pro-Choice America, Unitarian Universalist Association, Human Rights Campaign, Planned Parenthood, National Council of Jewish Women, National Organization for Women, Feminist Majority Foundation, AFL-CIO and MoveOn.org.
Charles Sumner, former President of Americans United said he was there to protest the nomination of Alito, "I am here to protest the nomination of Samuel Alito. His nomination is bad for separation of Church and State issues. He seems to be willing to allow government funding of major religious groups."
Sumner and his wife, Marjorie Sumner, went inside to Frist's office to express their concerns. Marjorie Sumner said she brought a fact sheet to Frist' Office, "I wrote that I am very concerned about a woman's rights to choose. Alito is not the man to make this choice for women. I hope he gets the message. The staff person said she would send on my concerns to Senator Frist."
Toby Abrams, of Tennessee NOW, said in a released statement that "Tennessee NOW, the state chapter of the National Organization of Women and Nashville NOW strongly urges Senators Frist and Alexander to oppose the confirmation of Samuel Alito to the US Supreme Court. Judge Alito has a long, well established record of hostility to women's rights, antithetical to a Constitution which symbolizes the inherent equality of all citizens."
Lugo's piece has photos worth checking out. Martin wondered if we'd have an indymedia roundup on Thursday. I honestly hadn't even thought that far. We should have. We may only have one entry, but we'll have at least that. (If the Alito hearings are over, we'll have both. Over by Wednesday. If they conclude on Thursday, we'll have one entry unless I have a second wind burst of energy.)
Lloyd steers us to Ruth Conniff's "Alito and Abuse of Power" (Ruth Conniff's Online Column, The Progressive):
The New York Times reported on Monday that Democrats are unlikely to filibuster Supreme Court nominee Samuel Alito, whose hearings begin next week. Democrats, while they generally oppose Alito, want to keep their powder dry and focus their efforts on opposing President Bush on other issues, including the Iraq War. One filibuster--over the Patriot Act--is enough for now. And, of course, there are the hearings coming up on the President's secret, NSA spying program--the bombshell revelation of the recently ended Congressional session.
It's understandable that the Democrats, as a minority in Congress, feel they need to pick their battles. But giving Alito a pass, while trying to make the case that President Bush has abused his executive powers, is a mistake. Alito's nomination is part of the Bush Administration's assault on the balance of powers that act as a check on the executive branch. Members of Congress and Senators on the Judiciary Committee--Republicans and Democrats alike--should take the opportunity of this nomination to ask questions about Alito's, and the President's, respect for our system of checks and balances, and to point out the pattern of abuse of executive authority that is seriously undermining Americans' privacy, freedom from overzealous law enforcement, and basic civil rights.
The ACLU has produced a report on Alito's record that speaks directly to these issues. In addition to his partisan conservatism and his opposition to reproductive rights, there is Alito's troubling record on the Fourth Amendment and his opposition to checks on both law enforcement and executive power.
Last word on Alito for this entry goes to a guest on yesterday's Democracy Now!, Kate Michelman. Brandon e-mails to note her "Alito's Fantasy World" (Boston Globe via Common Dreams):
In the 1998 movie ''Pleasantville," Tobey Maguire and Reese Witherspoon play typical '90s kids who are inadvertently transported into the unreal reality of a 1950s sitcom. They use their '90s values to teach the sitcom world some lessons about diversity and tolerance.
Today many people have a stylized, ''Pleasantville" vision of the pre-Roe era in which I grew up. They imagine fondly that almost all families had a Daddy at the office and a Mommy in the kitchen; that almost all family relations were well-ordered and unthreatening; in short, that life looked like ''Leave It to Beaver" -- and that, with a few legal adjustments, it could do so again.
The conservative movement has spent the last 20 years working to roll back social progress and make this fantasy a reality. It is time to stop seeing the fate of Roe as a Beltway parlor game. What really hangs in the balance in the Supreme Court nomination of Samuel Alito are the fundamental rights to privacy, dignity, and autonomy -- rights that transcend partisan politics, shape the course of our daily lives, and lie at the heart of who we are as Americans.
Conservative ideologues are simply wrong about the 1950s. Fans of the decade seldom mention that, with women's autonomy and earning power severely limited, poverty was a constant threat. According to the Census Bureau, in those days almost 20 percent of American families lived in poverty, as did more than 40 percent of families headed by women -- in both cases, roughly double today's rates.
Doctors and social workers were reluctant to report child or spousal abuse, and many women died from unsafe abortions each year.
I know, for I grew up imagining a ''Leave It to Beaver" future for myself.
But when my husband abandoned our marriage, I fell overnight from stay-at-home mother of three to single pregnant welfare parent. To support my family, I faced hurdles I had never imagined: the difficult decision not to continue the pregnancy, the humiliating interview with a hospital board seeking to prove me ''unfit" to have a child in order to have a ''therapeutic" abortion and avoid the back alleys, and the requirement to seek the permission of the man who deserted me and my family. Still, I was fortunate -- many women in my situation had no choice but to seek illegal abortions, and too many died as a result.
Rod passes on the scheduled topic for today's Democracy Now!:
Coverage of Day One of the Senate Hearings of Samuel Alito.
Remember that Pacifica continues broadcasting the Alito hearings live today.
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