Keeping up with the Republic is tricky over the holidays, when we all have so many things going on in our lives. Without recapping the whole last month of news, there are some ongoing stories that readers of KTR will find helpful to illustrate points in the book, and that the framework of the book in turn can help illuminate. Three main catch-up stories seem the most important this week:
- the U.S. Senate confirmation hearings of Judge Samuel Alito to replace Justice Sandra Day O'Connor on the Supreme Court;
- the recent plea agreement of lobbyist Jack Abramoff, with the consequent withdrawal of Congressman Tom Delay from his position as House Majority Leader, and the race to replace him;
- the ongoing debate over the National Security Agency's wiretapping of phones without a warrant.
So I don't overload you with things to think about today, I'll start with Alito this morning and cover the other two over the next few days.
Alito's confirmation hearings kicked off on Monday, with a statement from the nominee and continue this week with questioning from the senators on the Senate Judiciary Committee. As we explain in Chapter 10, Supreme Court justices are nominated by the president with the advice and consent of the Senate, which means the Senate holds hearings on the nomination in committee and then votes as a whole. The hearings can be tedious, as each Senator takes the opportunity to make a little speech, sometime seeming more interested in his or her own views than those of the nominees. While fireworks had been expected in these hearings, none have been apparent so far. (Dana Milbank, "A Day of Qs and As, and a Few Zs," WaPo, 1/11/06)
Many considerations go into a president's nomination of a justice, but perhaps the most important these days is ideology, which in the case of the Court means how the nominee is likely to read the Constitution: literally (a judicial philosophy we call strict constructionism) or flexibly (called interpretivism.) (KTR, p. 437.) In Alito, Bush chose a strict constructionist and the questions the senators are posing to Alito are focused on just how strict a constructionist he would be, especially with respect to abortion. Would he recognize the precedent set in Roe v. Wade that allows a woman to have an abortion in the first three months of pregnancy based on a judicially created right to privacy, or will he say no such privacy right exists in the Constitution and vote to overturn Roe? The Court is divided between constructionists and interpretivists right now, with Sandra Day O'Connor often providing the swing vote, so how Alito would vote makes a difference. Alito, although he is on record as pro-life and has voted in the past to restrict a woman's right to an abortion somewhat (he has, for instance, said a woman ought to notify her husband if she chooses to have an abortion) predictably he is not saying how he would vote, but is rather skating around the issue. (Richard W. Stevenson and Neil A. Lewis, "Alito, at Hearing, Pledges an Open Mind on Abortion," NYT, 1/11/06)
Another issue that has arisen in the Alito confirmation is the question of executive power. Statements from early in Alito's career when he worked in the Reagan White House indicate that he would favor a stronger role for the president, and he in fact favors the idea that a president should issue a "signing statement" when he signs a piece of congressional legislation so that when courts go to interpret the law, they rely not only on what Congress intended but also on the president's understanding of what he was signing. This doctrine, practiced by the Bush administration, which has already made several efforts to expand the power of the executive branch, would strengthen the president's role in the legislative process considerably. Bush issued a signing statement just recently, when he signed an anti-torture bill sponsored by, among others, Senator John McCain. The bill forbade the United States government to engage in torture to acquire information from detainees, essentially on the grounds that, if we fail to protect human rights we are little better than the people who seek to harm us. Bush, who has long insisted that the president needs to be able to wage the war on terror with a free hand, signed the bill and issued a statement that says that he intends to follow the law when he can. The implication, of course, is that sometimes he may not be able to, and depending on how you view the force of the signing statement, it may or may not change the meaning of the law that Congress passed. Alito has supported the expansion of presidential power in the past (which may be one of the main reasons Bush nominated him), but on Monday before the Senate Judiciary Committee, he insisted that the president is subject to constitutional limitations. (Josh White, "Kennedy Makes a Weapon of McCain's Torture Law," WaPo, 1/11/06.) The founders, who wanted a limited executive (and in fact who wanted a limited government period) would have been happy to hear that.
These two issues, strict constructionism/right to privacy/abortion rights and the expansion of executive power, are probably the ones to watch as the hearings proceed, although at least one analyst claims that the Democrats' inability to settle on one overarching criticism of Alito weakens their ability to make a coherent case against him. (Ron Brownstein, "Democrats Cast Wide Net Seeking Alito Flaw," LATimes, 1/11/06.)
Some things to think about:
- How much should the Senate's views count in the appointment of a justice? If a minority is strongly opposed, should it be allowed to filibuster the president's choice? (KTR, p. 306-308; 431.)
- What are the political implications of a justice's commitment to a philosophy of strict constructionism or interpretivism? How does it affect who gets what (who wins and who loses) in American politics? (KTR, pp. 437-438.)
- What should the limits be on the president’s power? The founders debated this issue, but came down on the side of a limited executive (KTR pp. 111-114); the Bush administration seems focused on expansion (KTR 319-320, 368; 340-341.) What are the costs of expanded executive power? What are the advantages?