[BearwWthoutBorders] NY Times editorial: Senators in Need of a Spine [Alito]

[Hunter Gray]

FWD from Marxmail -

NY Times Editorial, January 26, 2006
Senators in Need of a Spine

Judge Samuel Alito Jr., whose entire history suggests that he holds extreme
views about the expansive powers of the presidency and the limited role of
Congress, will almost certainly be a Supreme Court justice soon. His
elevation will come courtesy of a president whose grandiose vision of his
own powers threatens to undermine the nation's basic philosophy of
government - and a Senate that seems eager to cooperate by rolling over and
playing dead.

It is hard to imagine a moment when it would be more appropriate for
senators to fight for a principle. Even a losing battle would draw the
public's attention to the import of this nomination.

At the Judiciary Committee hearings, the judge followed the well-worn path
to confirmation, which has the nominee offer up only the most boring
statements and unarguable truisms: the president is not above the law;
diversity in college student bodies is a good thing. But in what he has
said in the past, and what he refused to say in the hearings, Judge Alito
raised warning flags that, in the current political context, cannot simply
be shrugged away with a promise to fight again another day.

The Alito nomination has been discussed largely in the context of his
opposition to abortion rights, and if the hearings provided any serious
insight at all into the nominee's intentions, it was that he has never
changed his early convictions on that point. The judge - who long
maintained that Roe v. Wade should be overturned - ignored all the efforts
by the Judiciary Committee's chairman, Arlen Specter, to get him to provide
some cover for pro-choice senators who wanted to support the nomination. As
it stands, it is indefensible for Mr. Specter or any other senator who has
promised constituents to protect a woman's right to an abortion to turn
around and hand Judge Alito a potent vote to undermine or even end it.

But portraying the Alito nomination as just another volley in the culture
wars vastly underestimates its significance. The judge's record strongly
suggests that he is an eager lieutenant in the ranks of the conservative
theorists who ignore our system of checks and balances, elevating the
presidency over everything else. He has expressed little enthusiasm for
restrictions on presidential power and has espoused the peculiar argument
that a president's intent in signing a bill is just as important as the
intent of Congress in writing it. This would be worrisome at any time, but
it takes on far more significance now, when the Bush administration seems
determined to use the cover of the "war on terror" and presidential
privilege to ignore every restraint, from the Constitution to Congressional
demands for information.

There was nothing that Judge Alito said in his hearings that gave any
comfort to those of us who wonder whether the new Roberts court will follow
precedent and continue to affirm, for instance, that a man the president
labels an "unlawful enemy combatant" has the basic right to challenge the
government's ability to hold him in detention forever without explanation.
His much-quoted statement that the president is not above the law is
meaningless unless he also believes that the law requires the chief
executive to defer to Congress and the courts.

Judge Alito's refusal to even pretend to sound like a moderate was telling
because it would have cost him so little. Chief Justice John Roberts Jr.,
who was far more skillful at appearing mainstream at the hearings, has
already given indications that whatever he said about the limits of
executive power when he was questioned by the Senate has little practical
impact on how he will rule now that he has a lifetime appointment.

Senate Democrats, who presented a united front against the nomination of
Judge Alito in the Judiciary Committee, seem unwilling to risk the public
criticism that might come with a filibuster - particularly since there is
very little chance it would work. Judge Alito's supporters would almost
certainly be able to muster the 60 senators necessary to put the nomination
to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are
frightened of it. But from our perspective, there are some things far more
frightening. One of them is Samuel Alito on the Supreme Court.

HUNTER GRAY  [HUNTER BEAR/JOHN R SALTER JR]   Mi'kmaq /St. Francis
Abenaki/St. Regis Mohawk
www.hunterbear.org
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 and Ohkwari'

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In our Gray Hole, the ghosts often dance in the junipers and sage, on the
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high windy ridges -- and they dance from within the very essence of our own
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it is as bright as day -- but in an always soft and mysterious and
remembering way. [Hunter Bear]