The confirmation hearings for Judge Samuel Alito begin today. According to the W$J, Reverend Rob Schenck (did they intend to write “Paul” instead of “Rob”?), an evangelical Christian and founder of the National Clergy Council in Washington, and two other ministers have prepared the room. Those seats Reverend Schenck is referring to will support the bums of Judge Alito, the senators, witnesses, Senate staffers and the press.
Reverend Schenck and two other ministers were barred from entering the hearing room last Thursday, so they were limited to blessing the doors. The seats got the oily treatment the day before.
The three ministers insisted they weren’t taking sides in the Alito debate. “This is not a pro-Alito prayer,” insisted the Rev. Patrick Mahoney, director of the Christian Defense Coalition. With abortion, public prayer, gay marriage and right-to-life issues among those topping public debate, however, “God…is interested in what goes on” in the nomination hearing, Rev. Schenck said.
The three ministers claim that they blessed the same confirmation room prior to the Roberts hearings, and that “went very well” according to Reverend Schenck. No wonder Roberts was so slippery.
> No wonder Roberts was so slippery.
“Once we have made a choice or taken a stand, we will encounter personal and interpersonal pressures to behave consistently with that commitment. Those pressures will cause us to respond in ways that justify our earlier decision.” (From the book “Influence: The Psychology of Persuasion” by Robert B. Cialdini.)
So it’s true. It’s harder to change your mind after you have publicly stated your opinion.
I am annoyed to find myself saying this, but I wouldn’t mind learning the opinions of various Bloggernacle lawyers (including those amongst my co-permabloggers) regarding Alito, both his judicial philosophy and likelihood of his confirmation. I am far more “conservative” (whatever that means) when it comes to the judiciary than in regards to the other branches of government, but some of the stuff which has been brought to light regarding Alito’s apparent deference to executive power nonetheless strikes me as highly worrisome, particularly at the present moment.
He’s really bright, and really competent, Russell Fox.
I don’t know that I’m a big fan of the untrammeled executive, either, but I’m not too concerned about Alito, because I think executive power almost always requires a political solution.
Russell: Most of the scare-mongering that I have read about Alito’s deference to executive authority has come in the context of opinons where the court was being asked to second guess determinations made by administrative agencies. These cases are decided as a matter of administrative law and ultimately hark back to Alito’s reading of the Adminstrative Procedures Act (and analogous statutes) rather than to the constitution itself. That said, I have no doubt that Alito — like most judicial conservatives — has an expansive view of executive power and subscribes to a strong vision of a unified presidency. Like Adam, I am not a big fan of a broad reading of executive power.
Alito is a very smart, very capable, very restrained and judicious judge. He is also a legal and political conservative, but this doesn’t transform him into the monster presented by the NYT.
Also, I think that his confirmation is fairly certain.
I will say this when it comes to Executive power: I like the idea that the President should be able to hire and fire anybody who works for him. But unlike some judicial conservatives, I don’t think the Constitution requires this, or, if it does, its not the sort of thing the judiciary should make itself the arbiter of.
On executive power: I think that the more troubling issue is judicial conservatives such as Thomas who believe that the commander-in-chief clause confers power on the executive to hold people without trial despite congressionally enacted statutes that give the prisoners access to the courts.
If you would have asked me a year ago what I would think about Bush replacing Rehnquist and O’Connor with Alito and Roberts (a package deal), I would have been all for it, particularly when considering other possible alternatives.
My impression is that Alito, while certainly conservative politically, is not nearly so ideological as Rehnquist. Perhaps this is just the difference between the counts on which they sit/have sat, but I find Alito’s decisions more judicially honest than Rehnquist’s. In any event, there is little risk that the causes that concern me could lose much ground with _any_ replacement of Rehnquist. Of all the issues to surface, I, like Russell, am most concerned about his deference to the executive. But if you think of things as a straight trade of Rehnquist for Alito (yes, I realize that this is technically not the case; but I’m thinking here of the net change to the Court), I don’t think we have more to worry about now than we did before. (Though I’d certainly be interested to hear if people think differently.)
As for Roberts and O’Connor, if you put politics aside, there is no question in my mind but that Robert will be a suprior Justice, by far. When political leanings are factored in, I don’t think there is all that much difference between Roberts and O’Connor. While it is probably fair to say that he is somewhat more conservative than O’Connor, I would still tend to view this trade as an improvement (given Roberts’ smarts, O’Connor’s mushy thinking, etc.).
My bottom line: I don’t think these two appointments are really going to shake things up on the Court. I think the Court got a whole lot smarter, and possibly a bit less ideological. As a result, I’m not all that exercised over these hearings.
Now if Stevens were to retire, that’s another story . . . .
Also, I agree with Nate’s assessment in #5, and his concern in #7 (frankly, I do not understand why this issue does not at least evenly split conservatives, or why conservatives who do not agree with Bush’s view of executive power don’t speak up more forcefully).
Heck, I even agree with Adam in #6. I must just be in agreeable mood today.
I think most Conservatives concerned about executive power simply don’t think Alito is the worry that some Democrats portray him as. I think this is more Democrats trying to frame the issue again and give Bush yet an other scandal. (They’ve done quite well of late with this – although Bush has helped them considerably) Of course Democrats have yet to realize that they need a positive message and not just a negative one. That’s what let the Republicans win in the mid 90’s. But I think the reform – especially structuralist reform – platform Democrats would need embrace goes against their own views of government. But I can guarantee that if they picked up a lot of the elements of the Contract With America to combat corruption rather than some of the silly McCain approaches (anyone remember the Keating Five?) that they’d also pick up a fair number of conservative voters.
Re: 2. This is beyond the Alito nomination, but I’ve long been of the belief that Congress has all the power it needs to check the Executive, with or without the Court. That it has consistently chosen not to do so since FDR is another matter altogether. That is, if Congress is losing power, it has no one to blame but itself.
Russell, Alito’s confirmation is selling at about an 88% probability on tradesports. So it is not a sure thing, but pretty likely.
As a government attorney myself, I have advised my clients that a good rule of thumb is that we (the federal agency) can do pretty much what we want to do, so long as we hav a good reason and can articulate what that reason is, and that we document what that reason is. That gets us through the Administrative Procedures Act that Nate mentions.
From my perspective, one of the ways the current administration has gone wrong is that they could not meet my rule: there was either not a good reason, or they did not adequately document their good reasons.
If you can document a good reason, you can probably get one of those “secret warrants” that has the democrats so up in arms about.
CS Eric: That is exactly why so many (conservative and liberal) are bothered by the spying without a warrant: there is, as there needs to be, already in place a perfectly good judicial mechanism for getting secret warrants, and it does not take very long at all to get one. Since there is no need for going around that mechanism, doing so is an abuse of power.
“I have advised my clients that a good rule of thumb is that we (the federal agency) can do pretty much what we want to do, so long as we hav a good reason and can articulate what that reason is, and that we document what that reason is.”
This is pretty much what we advise our clients who get involved with federal agencies, except the part about “so long as [the agency] has a good reason and can articulate what that reason is, and that [the agency] document what that reason is”
Adam,
I guess a lot of the advice we give is affected by our client. I can guess that just about everything we do that is the slightest bit out of the ordinary is going to be challenged by some outside third party. If my clients can’t answer the basic question “Why do you want to do that?” then it doesn’t get legal coordination. Either that or they try to strong-arm my boss to overrule my opinion.
I am convinced that the best service I did this country immediately after 9-11 was to let proposals for new (and stupid) security measures die on my desk without coordination. There was a huge impuse to do something just to do something, rather than to do something effective. Sometimes the most effective check on executive power is the bureaucracy, and I am not afraid to be the most obstructionist bureaucrat in the federal government if I have to be.
Laddy, the most effective check on everything is the bureacracy.
Jim F.: It is far from clear that it is administratively feasible to get a warrant in all of the cases where the NSA has been monitoring calls between U.S. citizens and foreign nationals. The argument is that by the time that you get a warrant the conversation is over, and that the electronic monitoring capability gives you the ability to identify potentially interesting calls as they occur. One possible solution would be standing warrants with indefinite targets. These, however, are hardly consistent with the traditional notions of search warrants. Indeed, they are legally virtually identical to the so-called writs of assitance that formed part of the background to the fourth amendment.
It would be nice if GW’s arguments from the practicalities really were specious and that we lived in a world where we could get all of the information that we might want on the bad guys and have traditional warrants too. We do not, alas, live in such a world…
Nate,
I’d understood that FISA includes procedures for obtaining warrants after the fact. If that is the case (and I’ve only hearsay to support it, as this isn’t my bailiwick), it’s hard to see how the “too urgent to get to court” argument holds up.
Am I misinformed about the after-the-fact provision?
After posting regarding my own ignorance, I decided to get a little smarter. I found this in Title 50, Chapter 36, Subchapter 1, Section 1805:
(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance [b]if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.[/b][/i]
I added the boldface to the statutory language for reference.
Are there other statutes, rules, or the like that would make this section inapplicable?
Dang.
botched the html tags.
“It would be nice if GW’s arguments from the practicalities really were specious . . . ”
What would really be nice is if GW were willing to have this conversation about practicalities in a discussion to amend the law instead of a rationalization for violating it.
Just for conversations sake. See the Rasmussen poll on the NSA program
http://www.rasmussenreports.com/2005/NSA.htm
Nate, in line with what greenfrog points out, though I’m hardly an expert on these things, my understanding is that your are wrong about there being no existing provision for emergency wire taps.
“What would really be nice is if GW were willing to have this conversation about practicalities in a discussion to amend the law instead of a rationalization for violating it. ”
True enough. In the end, I am not even arguing that we ought to get rid of the warrant requirement. My only point is that I think we will have to make real trade offs. Greenfrog, I have absolutely no expertise in this area, but even the post-hoc warrants allowed under FISA are a far cry from traditional fourth amendment protections. Furthermore, some have argued (not entirely persuasively) that the FISA doesn’t even apply to this sort of surveillance.
Perhaps Nate and I are just reading different things, but I think his “not entirely persuasively” qualifier in that last sentence is a bit understated. It’s kind of like saying, after taking the sacrament on Fast Sunday, “I’m not entirely full.”
The odd thing about the FISA arguments is that I have seen made both by defenders of Bush (“FISA doesn’t apply so he didn’t have to follow its procedures.”) and critics of Bush (“FISA doesn’t apply so what he was doing was totally illegal”). Wierd.
I haven’t seen the second of those arguments. What’s the theory? Because FISA doesn’t apply, the Fourth Amendment kicks in?
Rather than reinvent the wheel, may I recommend the Volokh conspiracy. These questions–does FISA apply, does the 4th Amendment, why not get a warrant, why not try to amend the law–have all been thoroughly discussed there from all sides of each question.
I would try to recap but I think I wouldn’t do it justice.
The Alito analysis that is for to laugh.
http://nationaljournal.com/taylor.htm
I would second Adam’s recommendation to read the Volokh posts on this issue. They’ve been pretty good.
I would add to that Jack Balkin’s site, http://balkin.blogspot.com/, which regularly becomes the source for additional commentary at Volokh. In fact, today on Balkinization there is a link to a letter from a dozen or so professors and former government officials to congressional leaders on the legality of Bush’s program.
http://balkin.blogspot.com/DOJ.Response.AUMF.final.pdf
Two cents from a non-laywer… It seems easy to see why even the FISA allowance for 72-hour backdated warrants in the case of emergencies are insufficient: such warrants still must be obtained without any ‘fruit of the poisoned tree.’ That is to say, suppose the only thing I have on American citizen Abu is an intercepted international call—selected only on the basis of automated data mining—saying “Abu, Osama says you should execute the plan next week.” I could not use this evidence to justify a back-dated warrant to obtain this same evidence. And yet it seems like a reasonable piece of evidence to obtain and act upon.
A key legal element seems to be the international nature of the communications. Think of it as a conservative revenge on the commerce clause. Just as the commerce clause gives the federal government the right to regulate essentially anything with the most remote or tangential interstate connection, so transactions traversing the nation’s borders give the Commander-in-Chief considerable leeway in making use of them for national defense.
John Smith and his brilliant wife Hannah clerked for Alito and they wrote about the experience here (ht: the Star)
I knew John Smith in my Guard unit. I won’t say he was a friend of mine, not exactly, because his gentleness and saintliness made me nervous. But his word is good with me.