Judiciary Committee Moves Alito Nomination on Party-Line Vote

Updated 6 am Thursday
Tuesday, the Senate Judiciary Committee moved the Supreme Court nomination of Samuel Alilto to Senate. Only the 10 Republican committee members supported his nomination; NBC reports this is the "the first nominee in 90 years to receive no support from minority members of the panel." According to CNN, slightly more than half of the country believe Alito should be confirmed -- approximately the same percentage that voted for President Bush in 2004. This is less support than Americans demonstrated for Chief Justice Roberts or even Clarence Thomas, who started the proceedings with a 63 percent approval rating.

There has been a shift in public opinion about how candidates should be evaulated, according to a July CBS poll. In both 1987 (Bork - failed nomination) and 1991 (Thomas), 39 percent of the public thought the Senate should consider "legal qualifications only." For Roberts, that percentage had jumped to 45.

There has been a corresponding drop in the percentage of Americans who believe "positions on the issues" should also be considered: from 52 percent (1987) to 49 percent (1991) to 47 percent (2005).

Editorial response to the nomination has been mixed, although almost universally, Alito is cited as a technically competent jurist. But is he "an empathetic justice who will maintain the vital protections the Founders and the court have accorded individual Americans — and the constitutional balance of power among the president, Congress and the courts", asks USA Today. Citing last week's decision regarding Oregon's death with dignity act, the paper's editorial board writes:

Obfuscating answers — and avoidance of answers — have been the habit of all recent nominees, making it impossible to say with certainty where a nominee will take the court. But a case decided by the court just last week hints at Alito's potential impact.

In dissent, three justices argued that the attorney general was free to punish physicians who might help terminally ill patients in pain end their lives, even under state regulation. Chief Justice John Roberts, Bush's first choice for a court vacancy, was one. Thomas and Antonin Scalia were the others.

In campaigning for president, Bush said repeatedly that he wanted more justices like Scalia and Thomas. Alito's record suggests he might soon have two — one vote short of a majority that could favor government intrusion in the most personal decisions.

The Miami Herald, too, states the obvious, while asserting that "[n]o justice should be denied a seat on the court, however, solely on the basis of judicial philosophy." Others write that so long as a nominee is not "on the fringe" that the President and the party in power in the Senate should be able to exercise their majority power. More from the Herald:

In nominating Judge Alito, President Bush fulfilled a campaign promise to appoint judges who shared the views of Justices Clarence Thomas and Antonin Scalia. Thus, he delivered a candidate with sound credentials but a decidedly conservative record that many find troubling.

This record includes a narrow view of abortion rights, apparent support for the expansive powers of the presidency in wartime and a narrow interpretation of the regulatory authority of Congress. Judge Alito likely will help move the court rightward, and some senators, no doubt, will find this a compelling reason to vote against him.

Hispanic leaders oppose the nomination based on Alito's civil rights record.

Those editorials opposing Alito tend to express concern about executive power or deference to authority.

In addition, The New Republic, a "champion [of] bipartisan judicial restraint," is concerned about Alito's philosophy of "inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers. Inflexible originalists, such as Clarence Thomas, are willing to uproot a great deal of well-settled precedent and practice--including much of the post-New Deal regulatory state--on the grounds that it is inconsistent with an eighteenth-century understanding of the scope of national power."

Alito was questioned extensively on his views about the theory of the "unitary executive," which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential "signing statements," which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature's intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress's explicit wishes. As tnr Legal Affairs Editor Jeffrey Rosen argues this week, Alito might join advocates of unchecked executive power, such as Thomas, who argue that the president can do whatever he likes in the war on terrorism, despite the opposition of Congress and the lower courts. As the Bush administration's rejection of congressional efforts to restrict domestic surveillance and torture suggests, the prospects of an imperial presidency unrestrained by the courts or Congress could be grave.

The Seattle Times columnist Floyd J. McKay, on Wednesday, explained the unitary executive theory thusly:

To advance the unitary executive during the Reagan administration, a corps of conservative lawyers — Alito was one — utilized "signing statements" in which the president, when signing a bill passed by Congress, declares that there are parts of the law that he basically intends to ignore. The signing statement declares congressional action unconstitutional or unduly intruding on presidential power and instructs the administration to ignore that law or section of law.

Couched in a lot of complex legalese, the signing statement amounts to a line-item veto, something not authorized by law but effectively accomplished by these statements....

Aggressive promotion of the unitary executive through signing statements was rare before Ronald Reagan, who made considerable use of the technique. George H.W. Bush and Bill Clinton used it as well, but disagreements were generally worked out with Congress, and didn't become a major issue.

But George W. Bush has made it a cornerstone of his increasingly aggressive presidency. In his first term, Bush issued 108 signing statements, with 505 constitutional objections, according to Portland State University professor Phillip J. Cooper, an authority on the practice. Bush not only uses it a lot, he uses it in unprecedented depth. When signing the Homeland Security Act in 2002, Bush wrote four-plus pages of statements exempting his administration from the law.

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