Dark Bilious Vapors

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Home » Archives » January 2006 » Reject Alito from Serving on the Supreme Court...

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01/12/2006: Reject Alito from Serving on the Supreme Court...

A small bit from a NY Time Editorial on the Alito views:

SUPPORT FOR AN IMPERIAL PRESIDENCY Judge Alito has backed a controversial theory known as the "unitary executive," and argued that the attorney general should be immune from lawsuits when he installs illegal wiretaps. Judge Alito backed away from one of his most extreme statements in this area - his assertion, in a 1985 job application, that he believed "very strongly" in "the supremacy of the elected branches of government." But he left a disturbing impression that as a justice, he would undermine the Supreme Court's critical role in putting a check on presidential excesses.

Descriptions of “unitary executive theory” can be found in numerous places but as stated by Tom Brune (Newsday): “Alito hearings to focus on presidential power”
At issue is the "unitary executive" theory, which Reagan officials promoted when Alito worked in that administration.

As Alito put it in a 2000 speech, "The president has not just some executive powers, but the executive power - the whole thing.”

That expansive view has led the Bush administration to claim the ability, since the 9/11 attacks, to carry out the war on terror without consulting with Congress or the courts on many controversial tactics, including coercive interrogations that critics charge are torture.

This isn’t just a *view* Alito endorsed…he AUTHORED the “Unitary Executive” theory. As well as the notion that *Executive Signing Statements* deserve the same consideration as Legislative History in reviewing the *intent* of the Law.

From Info Zine is this:
"…The Washington Post has reported that Alito wrote in 1986:
“Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress. ... [B]y forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

A leading expert on bill signing statements and the unitary executive, Christopher Kelley is author of a dissertation on the unitary executive and the presidential signing statement ( PDF ) as well as the paper "Rethinking Presidential Power -- The Unitary Executive and the George W. Bush Presidency" ( PDF ).

Kelley said yesterday: "While other administrations have made use of bill signing statements since Reagan, the current administration is doing something unlike what others have done, citing the unitary executive an unprecedented number of times in these signing statements. Judge Alito seemed to indicate that the concept of the unitary executive simply applied to the executive controlling inferior offices, but he must know better. For instance, the 'Oath' clause of the Constitution demands that the president protect both the office of the presidency as well as the United States Constitution. To ensure the president lives up to that solemn oath, he issues a bill signing statement that may be used to refuse to defend or enforce provisions of law the president independently determines to be unconstitutional, as well as to define vague, unclear, or undefined provisions of law.

"Judge Alito, who has written on aspects of the unitary executive, clearly should know that his understanding of the unitary executive is more than his description offered during his Senate testimony."

Notwithstanding some hollow statements he has made at these hearing that he was merely aggressively “promoting of the views of my client” (an argument he now twists and wriggle away from being pinned down about like some greased pig at a rodeo) is the ethical DUTY to argue for a client within the bounds of the Law and the Constitution.

There are allowances for making a “good faith” argument that the law is incorrect or for changes to the law. – but not for advocacy that completely ignores the prevailing Law and the Constitution and this “separation” of powers that the President, as a “unitary executive,” gets to add an "interpretive signing statement” to any and all laws that pass his desk. Nor that these should be accorded any weight by a judicial reviewing Court equal to the legislative history provided by Congress’ in the passage of a bill or law.

The Constitution's framework and own History - to prevent a "Kingship" from developing from an all powerful executive- argues against such a broad assertion of Executive Legislative Interpretive Powers. Nor does the Constitution allow an *Executive interpretation* which effectively nullifies the legislation the President purports to be signing into LAW. (As in the case of the McCain amendment.)

Alito’s points of view on this are NOT Mainsteam. And the mere fact that despite having created this Extra-Constitutional view point back in the 1980's and it still fails to obtain any Judicial congnizance - show how Out of the Mainsteam this IS. But, if allowed on the SC, he's now in a position to forcefully assert this view.

This is a dangerous and Extra-Constitutional view on the separation of powers of our three branches of government and their functions.

If there is any indication how Alito would come out on an issue of *Executive Powers* - since he has refused to directly speak on this - And his comment at the hearing that, "...there are theoretical issues which have to be explored. I don't believe the Supreme Court has done that. I've not seen, in my 15 years plus on the 3rd Circuit, come to grips with the question 'What is the significance of a Presidential Signing Statement on the interpretation of a statute.'" What better indication how he would view this than the very arguments he Authored himself in advancing the legal legitimacy that very point of view?

On this alone – Alito ought to be rejected from serving on the Supreme Court.

Karen on 01.12.06 @ 08:47 AM CST

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