Alito Hearings: CAP, the unitary executive theory, privacy and other questions that should have been asked

Paul Passavant thinks that the Senate Judiciacy Committee isn't asking the right questions. He writes (in this guest post for Long Sunday): What I wish Senators would have asked Alito.

1.    In Alito's letter of application to work in the Reagan administration he wrote that the popularly elected branches of the government should be supreme.  When confronted about this by Senator Kennedy and others, he called it "inapt,' and backed away from the statement.  Now his position is that the branches of government are co-equal.  I wish that the senators could remember how Reagan campaigned for president in part through an opposition to desegregation orders.  I also wish that the senators could remember that this invocation of the supremacy of the popularly elected branches was, at that time, a rhetorical weapon through which desegregation orders were resisted.  That phrase was used repeatedly to drum up popular resistance to 'court-ordered busing' and other court orders holding that racial segregation is an unconstitutional violation of the 14th amendment's equal protection clause.  I wish that the senators remembered the political work that phrase did in the 1950s-1980s (until desegregation came to a halt and we saw the resegregation of the US landscape).  I wish the senators asked Alito about this rather than letting him slide off the hook with vacuous statements more appropriate to a 5th grade civics class (no offense to the 5th graders out there).

2.    I wish, when Senator Kennedy confronted Alito with the unmitigated elitism of CAP (Concerned Alumni of Princeton)--the racist, classist, sexist, homophobic alumni organization Alito bragged about belonging to in his application to work in the Reagan administration and which he mysteriously could not remember even belonging to in his confirmation hearings (I know, calling something the racist/classist/sexist/homophobic organization would be funny if it weren't so obviously true as Kennedy demonstrated during the hearings).  More accurately-since Kennedy did confront Alito with this-I wish that Kennedy had connected the dots between the asserted supremacy of the popularly elected branches of the government and the unapologetically racist organization with which Alito affiliated himself.

3.    I wish someone (Senator Kennedy? Again, this came up under his questioning) called Alito on lying about the nature of his support for the 'unitary executive' theory-a theory of uncheckable presidential power.  After backing away from the theory by telling Kennedy that the independent administrative agencies were, indeed, constitutional, he said that the present state of this theory as it exists today is best expressed by the precedent Morrison v. Olson and the "functional" approach to separation of powers questions.  I wish Kennedy had asked Alito whether he was lying again.  The majority opinion in Morrison v. Olson and the "functional" approach that it takes is an out and out REJECTION of the unitary executive theory.  Scalia's vociferous dissent is the expression of the unitary executive theory in Morrison v. Olson and it was roundly rejected by the Court (as it should have been as being inconsistent with our constitutional system).

4.    Alito was obviously BS'ing on the full faith and credit clause (which will be important in the future).  I wish someone called him on it.

5.    Why are the Democrats so incapable of getting out ahead of the curve?Why are they always playing catch up?   For example, I wish someone would have asked Alito about US v. Miller (1976) which says that individuals don't have a constitutional privacy interest in, say, information that they divulge to banks and other "third parties" (that is why individuals don't have 4th amendment privacy rights when their financial records are searched at their bank or all of their account information and email are searched from their Internet Service Provider).  I wish someone had asked him about that.

6.    I wish someone had asked Alito whether he thought the internment of the Japanese and Japanese Americans during World War II was constitutionally justified (the US government has apologized for this, paid reparations, and overturned the decision upholding Korematsu's detention).  Conservative Michelle Malkin has written a book that is a defense of internment.  More recently, John Yoo, the infamous author (and ghost writer) of many "torture memos" has written a book in which he calls the internment "justified."  I wish someone had asked him about that.

7.    While Senator Leahy asked Alito about the recent change to the Supreme Court's jurisprudence on Congress's "enforcement powers" for the Civil War Amendments forbidding slavery, guaranteeing equal protection, and forbidding racial discrimination against the right to vote, it was cloaked in the language of the newly minted (by the Rehnquist Court) "congruence and proportionality" test.  I wish someone (Leahy?) would have asked him straight out what he thought of the key Supreme Court precedents upholding the great Voting Rights Act of 1965 (portions of which are coming up for reauthorization), such as Katzenbach v. Morgan and South Carolina v. Katzenbach.  With the recent turn that the Court has taken since the Boerne decision, these are becoming jurisprudential islands in a sea of conservative judicial policy making. 

8.    I wish someone had asked Alito whether he thought there was a constitutional right to vote.  Much like the right to choose, the right to vote is a product of case law and is nowhere explicitly guaranteed as such.  Especially since the New York Times has raised questions about Alito's support for the one person one vote rule, I wish someone asked him about this.

9.    I wish someone had asked Alito whether he thinks that the president is bound by international law or whether he agrees with the Nazi legal scholar Carl Schmitt who argued, much like John Yoo suggests, that there can be no such constraint on the executive.  I wish someone had asked him that.

10.    I wish someone had asked a couple questions of the senators as well, like, is it true that you guys knowingly lie, as the Republican senator of Iowa suggested as he was trying to get Alito off the hook for his unfortunate letter of application to work in the Reagan administration?  I also wish someone had asked Senator Chuck Schumer if it is true that he had never heard of the word 'inapt' before and if true, why he thinks that is something to brag about.  And I wish someone had asked the Republican senators if they thought that they were really exercising their constitutional powers of advice and consent in good faith by pitching their questions at a 4th grade level, helping to prep Alito for the hearings (in Lindsay Graham's case), and holding his hand through the answers they wanted to hear (in Arlen Specter's case).  In other words, I wish someone had asked the senators to just cut the crap.  That's what I wish.

11.    I wish someone had asked Alito if he though that he deserved to be confirmed if he was so gutless as to say anything in order to get confirmed.  It takes courage to stand up for minority rights in a time of majoritarian hysteria-does Alito think he has that kind of courage? I wish someone had asked him that.

12.    Finally, I wish someone had asked me what I thought Alito should be asked.  I wish a senator had asked me that.

Comments

[Matt]

Such a strange matamorphosis, this process entails, from babies to Gods they go. Or rather: the nomination process is a joke, a PR stunt. The Judicial Process of the future, always somewhat hubristically, optimistically invoked, is God. Let's just hope Lieberman doesn't quaver in his loafers.

Great post.

[Alain]

Jodi and Paul, did either of you see the cover of today's USA Today? It shows Alito's wife quivering with emotion as those mean, nasty democrats rip into her poor husband. If that is not propaganda, what is?

Thank you for posting this. I say John Yoo on some show defending the "unitary theory" of executive power. This is pretty scary stuff and I do not think the democrats are either up for the challenge or they just don't care.

[Matt]

Alain, it was. It also looks like the dems will filibuster, let us pray.

[Jodi]

Alain, I didn't see it; so your's and Matt's alert was my first contact with that pathetic little story.

Matt--do you have a link pointing to the likelihood of a filibuster? that last thing I read said they didn't have the votes.

[Matt]

Erm, I got the "Lieberman" link, in my first comment, from Kos, there where one usually gets things at a times like this.

[Matt]

More on Alito's favorite CAP.

[anonymous]

Nevermind.

Predictable. Where are you now, liberal bloggers?

[Blip]

All eyes on the aristocrats...

[nonymous]

Kerry is apparently calling for a filibuster now.

Digby your phone numbers to call.

[Blip]

You should really