Sunday, January 08, 2006

For Alito, the Cat is Out of the Bag

Except in his case, the "cat" is more like a cougar. The current scandal over the alleged abuse of presidential powers will no doubt prompt questions about Alito's legal philosophy. But, just how much has he already said? Salon observes this about the nominee and the "unitary executive" theory:

...when Alito, then a federal judge, participated in a panel discussion sponsored by the Federalist Society, the mother church for conservative lawyers. In his presentation, Alito argued strenuously in favor of a hail-to-the-chief legal theory called "the unitary executive." (Note to readers: Relax, this won't be on the midterm.) Briefly, what this theory argues is that every part of the executive branch (including regulatory agencies like the Federal Trade Commission and, yes, independent counsels like Kenneth Starr) should be legally under the control of the president. While Alito himself did not mention national security in his speech...

One vaguely worded speech from over five years ago is unlikely to make or break a nominee, even with the best "lawyers" of the Senate Judiciary committee. Still, his opinions(or the popular perceptions of them) on related issues will influence the proceedings. In a joint Tim Russert interview with John Cornyn, Sen. Chuck Schumer said that, "It’s one of the major questions that we will have to ask him his cases(as a judge of the 3rd circuit)...he has...sided with the executive branch in terms of their ability to do things."

The potential for a SCOTUS case to result from the current wiretaps could keep Alito's lips sealed. The precedent to maintain a "code of silence" about possible cases dates back to Sandra Day O'Connnor's confirmation hearings. In an article for an online supplement to the Yale Law Review, Robert Post and Reva Siegel note that:

In her confirmation hearings, Justice O’Connor refused to answer questions about “specific Supreme Court decisions presenting issues which may well come before the Court again” because she believed that it would be unfair to future litigants if she were forced to prejudge questions of law that might arise.

Even if Alito chooses to defend his views, his sterling legal credentials(and "well qualified" rating from the ABA) and GOP confidence hinoculatedated him against "Miers syndrome"-i.e., what happens to nominees who seem to be too close to the President. (In the aforementioned Russert intertview, Sen. John Cornyn said that he thought Alito would be confirmed unless there were an "extraordinary use of the filibuster.") Unlike his beloved Philadelphia Phillies, Alito just may win the pennant after all.


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