Mussolini v. Madison

I have little hope that Sam the Sham won’t be confirmed to replace Sandra Day O’Connor on the Supreme Court. It was a long shot going in. But instead of focusing on the essential reasons why a Justice Alito would be bad, most of the Dems have been playing “Who’s the Biggest Windbag?” (I’d say Senator Joe Biden is winning.)

In spite of the verbiage overload, there is one phrase we haven’t heard enough, however — unitary executive. That’s the name of a doctrine, embraced by Alito, “that the president, as commander-in-chief, is sole judge of the law, unbound by hindrances such as the Geneva conventions, and has inherent authority to subordinate independent government agencies to his fiat,” writes Sidney Blumenthal in today’s Guardian.

In other words, Alito’s view of the Costitution is closer to Mussolini’s than to Madison’s.

Blumenthal continues,

The “unitary executive” is nothing less than “gospel”, declared the federal judge Samuel Alito in 2000 – it is a theory that “best captures the meaning of the constitution’s text and structure”. Alito’s belief was perhaps the paramount credential for his nomination by Bush to the supreme court.

Alito’s manner before the Senate judiciary committee’s hearings has been prosaic and dutiful. He seems like an understudy for the part of Willy Loman in Death of a Salesman. But behind the facade of the supplicant who wants to be liked seethes a man out to settle a score.

Few public figures since Nixon have worn their resentment so obviously as Alito. … In his application to the Reagan justice department, Alito wrote that his interest in constitutional law was “motivated in large part by disagreement with Warren court decisions … particularly in the area … of reapportionment” – which established the principle of one person, one vote. Alito’s law career has been a long effort to reverse the liberalism of the Warren supreme court.

In the Reagan justice department, he argued that the federal government had no responsibility for the “health, safety and welfare” of Americans (a view rejected by Reagan); that “the constitution does not protect the right to an abortion”; that the executive should be immune from liability for illegal domestic wiretapping; that illegal immigrants have no “fundamental rights”; that police had a right to kill an unarmed 15-year-old accused of stealing $10 (a view rejected by the supreme court and every police group that filed in the case); and that it should be legal to fire, and exclude from funded federal programmes, people with Aids, because of “fear of contagion … reasonable or not”.

In the case cited above by Blumenthal, Garner v. Tennessee, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered. If the Senators have challenged Alito on that un-American opinion, it hasn’t been much reported. Instead, we get videos of Mrs. Sham’s running mascara. I also suspect the Senators should have been advised to spend more time grilling Alito on Garner than on Concerned Alumni of Princeton or Vanguard.

Law professor Jonathan Turley wrote in Monday’s USA Today that Alito’s deference to governmental authority knows no bounds:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.


These concerns are echoed in this editorial from today’s New York Times.

In his deadpan bureaucrat’s voice, Judge Alito has said some truly disturbing things about his view of the law. In three days of testimony, he has given the American people reasons to be worried – and senators reasons to oppose his nomination. Among those reasons are the following:

EVIDENCE OF EXTREMISM Judge Alito’s extraordinary praise of Judge Bork is unsettling, given that Judge Bork’s radical legal views included rejecting the Supreme Court’s entire line of privacy cases, even its 1965 ruling striking down a state law banning sales of contraceptives. Judge Alito’s membership in Concerned Alumni of Princeton – a group whose offensive views about women, minorities and AIDS victims were discussed in greater detail at yesterday’s hearing – is also deeply troubling, as is his unconvincing claim not to remember joining it.

OPPOSITION TO ROE V. WADE In 1985, Judge Alito made it clear that he believed the Constitution does not protect abortion rights. He had many chances this week to say he had changed his mind, but he refused. When offered the chance to say that Roe is a “super-precedent,” entitled to special deference because it has been upheld so often, he refused that, too. As Charles Schumer, Democrat of New York, noted in particularly pointed questioning, since Judge Alito was willing to say that other doctrines, like one person one vote, are settled law, his unwillingness to say the same about Roe strongly suggests that he still believes what he believed in 1985.

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.

INSENSITIVITY TO ORDINARY AMERICANS’ RIGHTS Time and again, as a lawyer and a judge, the nominee has taken the side of big corporations against the “little guy,” supported employers against employees, and routinely rejected the claims of women, racial minorities and the disabled. The hearing shed new light on his especially troubling dissent from a ruling by two Reagan-appointed judges, who said that workers at a coal-processing site were covered by Mine Safety and Health Act protections.

DOUBTS ABOUT THE NOMINEE’S HONESTY Judge Alito’s explanation of his involvement with Concerned Alumni of Princeton is hard to believe. In a 1985 job application, he proudly pointed to his membership in the organization. Now he says he remembers nothing of it – except why he joined, which he insists had nothing to do with the group’s core concerns. His explanation for why he broke his promise to Congress to recuse himself in any case involving Vanguard companies is also unpersuasive. As for his repeated claims that his past statements on subjects like abortion and Judge Bork never represented his personal views or were intended to impress prospective employers – all that did was make us wonder why we should give any credence to what he says now.

Pretty much sums it up.

9 thoughts on “Mussolini v. Madison

  1. Maha – Sam will be confirmed. He has the votes. It’s that simple. In the meantime, stop by our blog and see what Kristol and Bush are talking about. That’s all about the future, which is not totally inevitable.

  2. “Another three years…”
    “He has the votes…”

    Oh, crap. Am I supposed to give up? Was there like a memo or something?

    I was going to mention how ridiculous it was for Alito to claim (in response to Feingold) that even though he’s asked umpteen sitting judges to speak for him this afternoon, he’s never given one itty bitty thought to how he’d handle recusing himself when one of those judges’ cases came before SCOTUS. I mean, duh. That got through to me, and I’m no legal scholar.

    Am I supposed to stop thinking about this shit because it’s a done deal?

  3. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

    That’s why Alito is so important to Bush..Bush couldn’t give a shit above Roe V. Wade, he’s looking to cover his ass for all the abuses of power he’s committed. I suspect that at some point in the very near future Bush is going to meet up with an accountability moment, and he’ll need a mindless conservative drone in his court. Alito won’t be as secure for Bush as Harriet would have been, but he’ll do in a pinch.

  4. Well , if the unitary executive is gospel, the hynmal he’s reading from must be Mein Kampf. Glad to see the reference to Mussolini. fits
    So now that it is too late the editorials says he is duck, quacks like one and should be rejected for the extremist duck he is. Too late now

  5. I am working on a theory to which I have affixed the working title of “unitary free citizen.” The basic thrust of this theory is that when government officials place themselves outside the law, or by their legal advice or judicial opinions, enable government officials to place themselves outside the law, they and their enablers should be treated by free citizens as outlaws. The next step, which I am working on and will appreciate comments concerning, is the proper scope of the methods of dealing effectively with such outlaws. Comments?

  6. Pingback: The Mahablog » Distant Thunder

  7. THE BRAVE NEW WORLD AWAITS with implications crushing.

    O, wonder!
    How many goodly creatures are there here!
    How beauteous mankind is! O brave new world,
    That has such people in’t!

    Miranda in The Tempest, Act V, Shakespeare

    Linked you in the round up at Only People

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