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Alito's Threat to the Balance of Power

By Jeralyn, Section Sam Alito
Posted on Sun Dec 25, 2005 at 08:21:21 PM EST
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The New York Times opines that Judge Sam Alito has an excessive zeal for presidential power.

[His] memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power - notably when he voted to strike down Congress's ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power.

The Times urges Senators to ensure that Alito is on the side of the Constitution, not the President. Senator Leahy issued this statement Friday alerting Judge Alito that he would be questioned closely on his views about presidential power and checks and balances.

Armando examines what weight should be given to Alito's memos from his White House counsel days. Here is Sen. Leahy's description of Alito's memo on how to argue that the Attorney General should have absolute immunity for warrantless wiretapping, even should it turn out to be illegal:

DESCRIPTION OF THE JUNE 12, 1985, MEMO from Samuel Alito to the Solicitor General re: Forsyth v. Kleindienst (i.e. Mitchell v. Forsyth) (DOJ3-00285-DOJ3-00291) --

Mr. Alito later wrote the brief in Mitchell v. Forsyth arguing that the Attorney General should have qualified and absolute immunity for civil damages stemming from the warrantless authorization of wiretaps. Ultimately, the court ruled that the Attorney General was qualifiedly immune (because the decision was made before the Supreme Court clarified that such warrantless taps were unconstitutional), but rejected the arguments for absolute immunity.

In this memo, Samuel Alito takes an approach mirroring what he did in Thornburgh by embracing the principle of absolute immunity and suggesting tactical reasons for avoiding taking it head on. He argues that the Administration should seek cert only on the appealability of the qualified immunity claim, not on absolute immunity, but for tactical reasons: "I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here." He lays out why this is not a good case for absolute immunity, including the fact that they would not have Justice Rehnquist's vote and that it involves a controversial official from a controversial era.

In this memo Mr. Alito makes clear his own personal view in this matter, declaring that he, himself, has no doubt the Attorney General should have the immunity.

I think Judge Alito and John Yoo are cut from the same cloth. The thought of John Yoo on a court is frightening. Happily, he's too controversial to get the nod. But how is Alito any different?

< John Yoo: Why the President Can Order Snooping and Torture | Christmas Traffic is a Gift >

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    Alito's Threat to the Balance of Power | 4 comments (4 topical)
    Re: Alito's Threat to the Balance of Power (none / 0) (#1)
    by Talkleft Visitor on Sun Dec 25, 2005 at 09:43:15 PM EST
    Found in the comments section of Early Warning: "[T]he President can declare martial law anytime he likes..." (with citations to published Executive Orders). True? I have been figuring that he would use the avian flu outbreak as his excuse.

    Re: Alito's Threat to the Balance of Power (none / 0) (#2)
    by Talkleft Visitor on Sun Dec 25, 2005 at 10:37:00 PM EST
    For at least this week and maybe longer - I will decide Jan 1st. I refuse to read the New York Times or post links. By their suppressing the story on the wiretaps without warrants before the presidential election they allowed people to vote for a man not willing "to preserve and protect the Constitution of the United States of America." As a corporation they have shown themselves to be a threat to the Constitution and must be hit where it hurts - the pocketbook and influence. To state your opinion on this vote here- http://tinyurl.com/e3at5

    Re: Alito's Threat to the Balance of Power (none / 0) (#3)
    by Talkleft Visitor on Sun Dec 25, 2005 at 10:44:40 PM EST
    Sorry, that was posted while I was still editing. "By their suppressing the story on the wiretaps without warrants before the presidential election they failed to provide extremely relevent information on a man who would be charged "to preserve and protect the Constitution of the United States of America."

    Re: Alito's Threat to the Balance of Power (none / 0) (#4)
    by wg on Tue Dec 27, 2005 at 06:12:53 AM EST
    It is hard to underestimate the importance of Alito nomination. Laws can be revoked, amended. Little to nothing can be done once a judge is installed. Alito is a difficult candidate to oppose. He's unquestionably intelligent, articulate. He appears well read and presents well. He is also smart enough to be patient when working on his agendas, good careful tactician preferring to accomplish things quietly in small incremental steps. This makes him an excellent government lawyer. Unfortunately there are also indications that he would make a poor Supreme Court judge. His work as a government lawyer and later as a judge strongly suggest significant lack of balance - he tends to be with the government (executive) most of the time. Examples abound - excessive secret surveillance by the government, reproductive rights, over the top prosecuting for the FBI, strip searching of teenage girls by police, etc. He never defended a private citizen in US courts. Here is my personal appeal to our GOP friends. Think of your country first, about balance of things. There is a perception that the old system of "check and balances" has been compromised in this country in recent years. Too many things are done these days in total secrecy without much debate and without meaningful oversight. The executive became dangerously assertive. Internal security apparatus continues to demand Stasi-like powers. Accepting Alito will mean these trends will become stronger in the future. This country needs a better balance. Approving Alito is a sure way to make achieving such balance difficult.

    Alito's Threat to the Balance of Power | 4 comments (4 topical)