Judge Alito’s Radical Views
The New York Times editorial board entitles its piece urging Senators to defeat Samuel Alito’s nomination for the Supreme Court “Judge Alito’s Radical Views.” It arrives at the conclusion that Alito is “radical” by lumping in arguments he advanced as a client advocate with misleading use of technical language that has a different meaning than in ordinary use. The combination brings to mind Teddy Kennedy’s infamous “Robert Bork’s America” diatribe.
He has supported the fringe “unitary executive” theory, which would give the president greater power to detain Americans and would throw off the checks and balances built into the Constitution.
The “unitary executive” theory merely holds that the President is the ultimate decision-maker in the executive branch, which is not only not “radical” it is the view of the Framers of the Constitution.
He has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress’s intent in writing and approving the law.
If the Courts are going to try to discern “intent” rather than what the language of the law actually says, then why is it “outlandish” to consider the president’s words alongside those of the Congress? After all, the final compromise bill hammered together by the conference committee often differs rather substantially from those initially voted upon.
Judge Alito would also work to reduce Congress’s power in other ways. In a troubling dissent, he argued that Congress exceeded its authority when it passed a law banning machine guns, and as a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers.
These rulings were not about “Congress” per se but rather the federal government. There is indeed legitimate debate about the scope of federal regulatory power, odd as that may seem nowadays.
Judge Alito has consistently shown a bias in favor of those in power over those who need the law to protect them. Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy. In the same flat bureaucratic tones he used at the hearings, he is likely to insist that the law can do nothing for them.
Alito may well rule that the law can do nothing for aggrieved people who have no legal claim; judges do that routinely. But to imply that Alito would single out minorities and the disadvantaged is an outrageous slur with no basis in fact.
Ironically, the basis of the Times‘ appeal to Senators is a rather bizarre reading of the nature of the confirmation process:
As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O’Connor with Judge Alito be a step forward for the nation, or a step backward?
That judgment is exclusively the president’s. The president alone is charged by the Constitution with choosing judges for the Supreme Court. The Senate’s role is merely to offer advice and consent. Their only responsibility is to ensure that nominees are fit to serve. Alito rather obviously meets that test.