The conservative Alito has publicly endorsed the theory of the unitary executive, which takes a broad view of presidential authority. Alito's liberal critics say his record has been too obsequious to expanded executive power.
The position of these two camps seems peculiar. Many of today's conservatives, such as Alito, Vice President Dick Cheney, and Cheney's chief of staff David Addington, believe that the presidency is not muscular enough. In fact, the vice president, contrary to most scholarship on the issue, feels that, in recent decades, the executive branch has been emasculated.
Yet conservatives also tout their custodianship of the original intent of the framers of the Constitution. The nation's founders would turn over in their graves if they were to learn of the modern imperial presidency.
The U.S. Constitution was written after a war of independence from what the colonists believed was a despotic king. The document was designed to strictly limit federal power, vis-à-vis the powers of the states and the people.
Within the constricted federal realm, the framers intended to make the decentralized Congress the dominant branch and gave that body many more enumerated powers than the president or the judiciary. It is no coincidence that the article of the Constitution setting forth the powers of the legislative branch is listed first and is by far longer than Article II, which lists the responsibilities of the executive branch, and Article III, which covers the judiciary.
Strong writing from the New York Times, no? No.
The above is from Consortium News, Ivan Eland's "An Imperial Presidency Based on Constitutional Quicksand." The paper of record is in fluff mode this morning (which is why Adam Nagourney gets a byline). There are a whole host of issues that were raised in yesterday's hearing that the Times either missed or takes a pass on.
We'll stay with Zach highlights from Constortium News to note Nat Parry's "Alito & the Point of No Return:"
The U.S. Supreme Court nomination of Samuel Alito may represent a point of no return not only on the issue of abortion and other longtime conservative political targets but on the checks and balances that have been the cornerstone of American democracy.
With Alito's confirmation to fill the swing-vote seat of Sandra Day O'Connor, George W. Bush could well consolidate a majority on the high court to endorse his expansive interpretation of presidential authority, including his insistence that his commander-in-chief powers are virtually unlimited throughout the indefinite "war on terror."
But Alito might face a tougher confirmation battle than Chief Justice John Roberts did, in part because controversies over Bush's claims to unfettered Executive power have deepened over the past several months, such as the dispute over Bush's asserted right to conduct warrantless wiretaps of Americans.
Objections also have been raised over Bush's use of "extraordinary rendition" of terrorist suspects kidnapped and shipped to countries that practice torture, the CIA's network of secret prisons where people are jailed without charge, the practice of subjecting U.S. detainees to abusive and degrading treatment, and privacy concerns regarding the USA Patriot Act, all of which relate to Bush's unprecedented view of presidential power.
"Recent events overlap with some of the beliefs and behavior of Mr. Alito that are of greatest concern," Sen. Ted Kennedy, D-Mass., wrote in an e-mail message to supporters on Jan. 6. "We have a President who unilaterally orders wiretaps on American citizens without judicial oversight -- and he has given us a Supreme Court nominee whose record indicates a belief that the Executive Branch operates above the law, including the power to ignore prohibitions on torture."
Last year, when Roberts was asked by senators about his views on Executive power, he skillfully ducked the questions by saying it would be inappropriate for him to comment on matters that might come before the court. Roberts also had a limited record of judicial and legal opinions to ask about. [See Consortiumnews.com's "Roberts & the 'Apex of Presidential Power.'"]
While Alito is certain to try the same strategy of brushing aside specific questions about his judicial philosophy, his paper trail of opinions is much more extensive than Roberts’s record was.
Ruth gave a special, mid-week report yesterday. However, she is planning one for tomorrow morning. She intended it for today, but the roundtable Gina and Krista conducted for their roundtable ran long last night. Be sure to check your inboxes for the special edition of the gina & krista round-robin, by the way. You'll find all the issues the Times missed.
Polly corrects me, thank you for that, on the Good Housekeeping issue. "It's October's issue," Polly writes. She's working on a summary of that issue and when she's completed it, we'll put the information up here. From the same entry, apologies to Tori and anyone else who attempted to read the Frances Moore Lappe article in The Nation that we linked to. It's available online to subscribers only. When the issue arrives (or, if it has arrived, when I'm back home), I'll summarize it. (If Doug, who highlighted it, or anyone else wants to summarize it before then, feel free.)
Rod passes on a scheduled topic to today's Democracy Now!:
Day Two of the confirmation hearings for Supreme Court nominee Samuel Alito.
And Pacifica continues to bring you live coverage, gavel to gavel, of the Alito hearings.
The e-mail address for this site, currently, is thirdestatesundayreview@yahoo.com.
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