by hilzoy
Sandy Levinson has written two very good posts about Alito on Balkinization (1, 2). An excerpt from the second, which concerns this Washington Post story:
“The most important paragraph is the following:
“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,” Alito wrote. He later added that “by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.”
Important to whom, one might ask? The first answer is “internal”: I.e., one might well view this as supporting the view that Department of Justice lawyers, including lawyers in the Office of Legal Counsel, which is at least as important as any given Federal Court of Appeals, should look to presidential undersanding when interpreting statutes. Only, presumably, in the absence of a signing statement, should any attention be paid to legislative history. Of course, if one is a strong Scalian, then it is not clear why a presidential signing statement should have any more authority than a committee report. Neither, according to Scalia, should be paid the slightest attention. This may suggest that Alito is less of a Scalia clone than has been suggested and that he is in fact more dangerous, at least if one fears Executive supremacy.
The second answer is more “external”: I.e., what should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn’t ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that’s not what Alito means, it’s hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer’s “clear mistake rule” for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President. (…)
The ultimate question, of course, is what happens when the Court tells the President that there is indeed something that he/she cannot do, however much the President believes, in entirely good faith, that it is “necessary” (in some sense of that slippery word) to safeguard some important public value, including national survival. I don’t know that Judge Alito has ever spoken to this question directly. It should be enough, though, that there is now fairly dispositive evidence that he was, while in the Reagan Administration, a full-scale adherent of what might be termed the “liberated” (and possibly “unfettered”) Executive, and it would be astonishing if the Justice-pickers in the Bush Administration did not believe that this represents his view today.”
I’m posting this both to recommend the pieces, and also because Sandy Levinson taught me civil liberties when I was an undergraduate, and (as I said in a comment to post #1) is as responsible as anyone for the fact that attempts to do end-runs around the Constitution don’t just disturb me in some abstract way, but make me furious. He was an inspiring teacher (drop-dead brilliant, too), and what he inspired me with was an absolute devotion to the Constitution and the system of government it sets up. I did not end up thinking that it was perfect (cough, electoral college, cough cough), or sacred, or even clear. But I did end up thinking that it and our system of government, together with the kind of allegiance they enjoy, are a considerable human achievement, and one that should not be tampered with lightly; and I mind, in a completely visceral way, attempts to undermine or circumvent it.
(I have no idea whether he meant to produce this effect, or would approve of it. I do recall disagreeing with some of his views. A lot of them, actually. But that didn’t matter, since he never struck me as the kind of teacher who was after agreement.)
So to all you professors and would-be professors out there: if it ever occurs to you to wonder whether teaching ever has any sort of impact, just think: one of your students could go off, enter a completely unrelated field, lose touch with you entirely, and then, decades later, end up writing whole series on habeas petitions by Guantanamo detainees, largely because a course she took from you mattered to her.
So: Thanks, Professor Levinson. I’m not sure I mentioned any of this at the time, being a sophomore and all. But I should have.
That’s simultaneously inspiring and terrifying.
Jackmormon: it shouldn’t be terrifying. You just do your best and then trust in either God or some rough equivalent.
Cheney, Nixon, and Presidential Power dated 1/06/03, by John Dean
“The executive branch shall construe..in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power..” and, “..to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus..”
Today’s signing statement.
What constitutional crisis? L’etat, cest moi.
“But I did end up thinking that it and our system of government, together with the kind of allegiance they enjoy, are a considerable human achievement, and one that should not be tampered with lightly; and I mind, in a completely visceral way, attempts to undermine or circumvent it.”
That’s precisely why I’m reluctant to do anything about the Electoral College (not the last clause, the rest), but I probably shouldn’t say, because we don’t want to go there just now. Okay, move along now.
Having picked up my passion for the Constitution without benefit of college, and long before my blink-of-an-eye sojourn there, I’m not quite sure where to point to to explain it. “1968-74” pretty much sums up why it seemed mandatory to go backwards, I guess, and as a passsion inextricable from passionate fascination with our history, and history in general, and from desperately needing to know what our civil liberties were, wherefore, why, and how.
“How did we get where we are, anyway?” devotion to history. All pre-high-school in origin — though, of course, never ceasing thereafter.
Also, the Federalist Papers are mindblowingly awesome, whether at 12 or 47, I’m here to say. (Not to say English common law isn’t also; my knowledge of other legal codes and philosophy, be they Napoleonic or Babylonian or Chinese tends to be comparatively thimble size, to be sure.)
Being slow to come to judgement on many matters, I do pronounce that I’ve been persuaded over time to move from the position that were I in the Senate, I would vote against Alito, to the position that I very much wish for the defeat of his nomination.
However, my crystal ball remains cloudy as to how practically likely it is, and, perhaps even more importantly, what would happen afterwards.
Would the President simply keep sending ever-more wacko nominees to the Senate (I keep having nightmares of Janice Rogers Brown on the Court)?
Would the Democrats and sane Republicans be able to keep up with a game of whack-a-mole?
Would Bush possibly nominate someone more palatable (possible, but hardly to be counted upon, is it?)?
Maybe we’d have a Court with only 8 members until Bush is out, or maybe Justice O’Connor would stay on as the first mandatory draftee Justice. No one knows who else on SCOTUS will fall over tomorrow, of course, and it’s hardly unlikely.
Maybe Bush will be impeached. Maybe he’ll plow his bicycle in a tree, and President Cheney will nominate himself. I have no goddamn idea.
There’s a pretty good argument for playing for time, though. Particularly if it’s just until January, 2007, rather than January, 2009.
Meanwhile, we have a weak hand. But I don’t do card-playing advice. Go not to wizards, etc., for they will tell you both yes and no.
And I’m worse, I’ll give you five answers.
So I read law professors and political operatives, and ponder.
Gary, don’t forget the possibility of a recess appointment.
“Would Bush possibly nominate someone more palatable”
Hey, I am wingnut territory, in believing that the entire purpose of Luttig’s Padilla decision was to make him palatable if Alito goes down. Yes, I think the decision was disgenuous. Does Luttig have a history of restraining executive power? I can be convinced.
…
The Dean article should be enough to convince the convincable that this isn’t about keeping America safe or terrorism or torture or any other particular crimes or programs or policies. It is about a thirty+ year measured march toward an Imperial Presidency, restrained only by election and impeachment. It is not an easy Constitutional Interpretation to understand. IIRC, the impoundment of funds was one of the articles against Nixon, and the Cheney administration diverted funds from Afghanistan to Iraq, so apparently Congress doesn’t even have the “power of the purse.”
But it has to be slapped down, harder than Nixon was slapped down. It has been building for thirty years because Nixon was not slapped hard enough.
“It has been building for thirty years because Nixon was not slapped hard enough.”
I’ll sign up for that.
There never could have been enough Nixon-slapping. And I mean that.
Setting aside my beliefs about capital punishment for a moment of good old Nixon-hating, I only wish we could have hung the son-of-a-bitch.
Hunter Thompson had him pegged.
For the record it’s fair to say that Nixon was my first political obsession. Imbibed in in mother’s milk, with lessons about about Helen Gahagan Douglas, the Pink Lady.
But at one point by the mid-eighties, well, I won’t say I read every book ever written on him, because scholarly monographs count. But I’d say I’d read every major book, and enough minor ones to add up to hundreds. Including every book he wrote, and the memoirs of every major figure who ever served with him, and plenty of the minor ones, down to Manolo’s, and up to all of Kissinger’s. (To give a clue, my two best sweeties, after being split from both, jointly gave me the then latest Kissinger door-stop for my 1984 birthday present, knowing it would please me greatly, because that’s me.)
As I said, obsession, for quite a long time. And before there was the internet, was the library.
Rereading Nixon Oval Office tape transcripts again for hours yesterday may have freshened the red-bloodness a tad, mind.
I dearly wish I could have these transmitted and burned directly into the brain of every American alive today. All of these would be even better. All the rest should go on the web, as well.
Whoops, Bob hit the “Nixon” button. See what happens?
I would vote against Judge Alito also, but I’m not sure how far to go with a memo he wrote as an advocate. I mean, I’ve argued a signing statement that went my way, and would expect anyone to do the same.
I would guess that Judge Alito will deal with this, and other similar questions, more or less the same way Chief Justice Roberts did: endorsement of Justice Jackson’s concurence in Youngstown, commitment to play the judge’s role in as dedicated a way as he played the advocate’s.
Yes, and say basically all that stuff about being a true believer was just puffing for the job interviews, and that Bush nominated him because of his neutral judicial temperment.
yada yada yada. Where are all these people’s “just serving the bosses” pieces that go against the President’s philosophy?
Looking forward to a reply to Fried’s NYT OP Ed. I see it wasn’t behind the subscription wall.
I would vote against Judge Alito also, but I’m not sure how far to go with a memo he wrote as an advocate.
Charley,
I think this argument, which we’ve heard a lot of from Alito supporters, ignores the context of Alito’s advocacy.
The image it projects is of a private practitioner who just had Reagan walk in as a client one day, and did the best he could to represent his interests in the matter, as though it were a contract dispute of some sort.
Of course that’s not what happened. Alito sought a job in the Reagan Administration, fully knowing as anyone would, that it would involve making arguments on essentially political issues. From this I think it is fair to presume that he was not merely acting as a paid advocate, but actually believed in the legal correctness of the positions he took.
This may not be true with respect to all his memos, but I think it’s the sensible default assumption until we have strong evidence, including statements by Alito, that it does not hold for some of them. Such statements, in my opinion, need to be fairly explicit, not the sort of mealy-mouthed evasion that nominees typically offer. Otherwise the presumption stands.
I mind, in a completely visceral way, attempts to undermine or circumvent it.
Just curious: Does that visceral opposition apply to any liberal constitutional innovations, such as Roe?
In what way do “liberal constitutional innovations, such as Roe” undermine or circumvent the Constitution?
As regards the possibility of defeating Alito, this WSJ offers some promising reasons for non-pessimism.
Oh, and while anyone should interested should read the whole (extremely short) piece, this just staggered me slightly:
In fact, I wasn’t going to blog the article, but that makes it worth it.