Sunday, January 08, 2006

Alito's Nomination

This makes it essential, obviously, that every member of the Senate Judiciary Committee, led by Senator Spector, grills Judge Alito in the hearings. He must be probed on his views of Article II, including the Commander-in-Chief Clause and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President essentially to do whatever he wishes so long as there is a good faith belief that it is “defense” of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the “amputated Constitution” should give us all pause, and we should find out what kind of constitutional doctor Samuel Alito would be on the Supreme Court.

Had Alito been nominated two years ago, many of these questions might have sounded “academic.” In the aftermath of the disclosure of memos written within the Department of Justice justifying the President’s “inherent” right to torture and then, more recently, of Bush’s own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic.

Some observers are throwing around the idea of impeaching George W. Bush. For a variety of reasons, that is unlikely to happen. We are almost certainly be stuck with Bush until 2009. But we are not stuck with having to ratify the would-be-king’s choice of his courtiers. Samuel Alito is undoubtedly very bright, and he is probably as pleasant a person as many of the stories make him out to be. But there is also a very high likelihood that he has been chosen to assist in the overall project of executive aggrandizement, and no senator should vote to confirm his nomination unless he or she is absolutely assured that that is not the case. The stakes are simply too high to allow any deference at all to this president (and vice-president), whose hunger for power, if tolerated, will transform us into a country that none of us should wish to live in.


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