More Than Ever, We Find Out, Alito Must Not Be Confirmed

The Washington Post has handed a wonderful Christmas gift to those of us who worry about keeping the Supreme Court from becoming an instrument of the Bush administration long after the time when George W. Bush has finished his second Presidential term:

Supreme Court nominee Samuel A. Alito Jr. once argued that the nation's top law enforcement official deserves blanket protection from lawsuits when acting in the name of national security, even when those actions involve the illegal wiretapping of American citizens, documents released yesterday show.

As a lawyer in the Reagan Justice Department, Alito said the attorney general must be free to take steps to protect the country from threats such as terrorism and espionage without fear of personal liability. But in a 1984 memo involving a case that dated to the Nixon administration, Alito also cautioned his superiors that the time may not be right to make that argument and urged a more incremental approach.

Hmm, didn't Alito say something similar about incrementalism being the road to overturning Roe v Wade?

Hold on, it gets better:

Democrats were quick to link the issues yesterday, saying Alito's memo raises questions about his commitment to protecting civil liberties by checking executive power. The type of absolute immunity that Alito discussed would have shielded attorneys general even when their actions violated constitutional rights.

"At a time when the nation is faced with revelations that the Administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability," said Sen. Edward M. Kennedy (D-Mass.).

Yes, the better part is that Democrats are making the connection between this President's unprecedented reach for extra-constitutional power and a Supreme Court with the addition of Judge Alito, which will mean a clear right-wing conservative majority that eschews the notion of the constitution being a living, breathing document, which means, in effect, a court that will opt for a dead constitution, whose words are to be interpreted in some dead-letter fashion that takes the life out of our most sacred governing jurisprudence, like, for instance, that no man, or woman, is above the law.

Good God, how many thousands of times did all of us hear that no man is above the law, even the President, when said president went by the name of Clinton? Don't you wish now we'd been counting then?

This current President Bush has essentially said not merely that he is above the law, he is saying that he is the law. Alito needs to make crystal clear in those January hearings what his detailed views are on the questions raised by the position of this presidency, as enunciated by, besides the President himself, his AG, his DOJ, and an entire political movement that has proudly claimed Judge Alito as their own standard bearer. In addition, we need to hear, with that same specificity, what Alito's views are on the question of the rights of American citizens to privacy in those most personal choices they make about their own private behavior, and on the question of our rights as American citizens to form majority opinions about how we want our government to treat larger societal issues.

That, it seems to me, speaking as an American citizen who is not a lawyer but who has paid attention, over the years, to how I am governed, the better to give my informed constitutionally mandated consent, is the gist of the conservative judicial movement - a belief that government, on behalf of majority opinion, has the right to intrude on such personal matters as reproductive choices, and governmental religious displays, and has the right, as well, to keep track of what choice of library books you make, but that as citizens, you don’t have the right to expect that government will be responsive to majority opinion on social and political matters concerning how government can be used to moderate between competing societal interests, as, for instance, the needs of large corporations to make money, and the need for all of us to live in an environment that doesn’t poison us. The conservative judicial movement posits that the constitution countenances a blanket restriction on the ability to chose to have an abortion, but does not countenance most of the reforms instituted under Roosevelt’s New Deal, not to mention what this country achieved under Truman, Kennedy, Johnson, to some extent, Nixon, Carter, and Clinton.

Let us also not forgot that though the roots of that movement may have blossomed in the nurturing soil of the Reagan administration, they were clearly planted in the tainted soil of that extreme counter reaction of the Nixon administration to the jurisprudence of much of both the Warren, and the subsequent Burger Supreme Courts. The fact that this Alito memo seeks to provide justification for the jurisprudence of John Mitchell, an Attorney-General who signed off on the criminality of the Nixon administration, speaks volumes, especially if Alito refuses to tell us how his views differ today, from those expressed in these earlier written memos of his.

We will hear, once again, as we did with Judge Roberts, that Alito was young, that he was tasked as a lawyer in the DOJ to write legal opinions defending the prerogatives of office of the Presidency. Fine. I accept that. Just tell us, Judge Alito, how your views have changed over the years?

You can, and you should, read the entire article here

Rest assured that Judge Alito will take the line that it is impermissible for him to give such detailed answers. That, in a word, is bunk, pure bunk. And you can be assured that he knows it is.

The memo was among more than 700 pages released by the National Archives yesterday in response to a public records request from The Washington Post.

They portray a strategic legal thinker attuned to the sensitivities and ideological balance of the Supreme Court. Coupled with previously released memos, they paint a picture of a man who often preferred more indirect approaches over headlong charges in advancing the Reagan administration's legal agenda.

The fact that the case the memo was addressing involved FBI suspicions that anti-war activists were plotting to blow up Washington utility tunnels and kidnap Henry A. Kissinger will be made much of by the right. Remember, this was the same FBI that made tape recordings of Martin Luther King comitting adultery, sent them to him, and enclosed a note suggesting that if he wished to keep them from becoming public, he might want to consider committing suicide. This was the same FBI that infiltrated peace groups and tried to get them to behave violently.

Yes, first we have to remember why it was that the Church committee was created, and what exactly it was that they found our security infrastructure had been putting our tax dollars to work to accomplish, and why the vast majority of Americans were shocked and disgusted by those findings, and finally reassured by the changes made to rein in our intelligence community. Then we need to let our fellow citizens know about that history and about the fact that we did not become weaker as a result of the Church committee.

Most of all what we need to be doing, and right away, too, is to give comfort and encouragement to the Democrats, and perhaps some of the centrist Republicans on the Judiciary Committee, who are the only Americans right now who can hold Judge Alito and the Bush administration to account. We have reason to believe that the Democrats, at least, will welcome such support. From a different Wa Po article on the same subject:

Within hours of the release of the 1984 memorandum, Senator Charles E. Schumer of New York, a Democrat on the Judiciary Committee, wrote to Judge Alito that he intended to question him about warrantless wiretapping during the judge's confirmation hearings for the Supreme Court next month. And another Democratic member of the committee, Senator Edward M. Kennedy of Massachusetts, said, "The questions surrounding the Alito nomination get more troublesome every day."

Stay tuned; we have a lot of work to do before Senator Spector's gavel calls that first day of hearings on the Alito nomination to order.

UPDATE: Harry Dogwater, a personage well known, under a different name, to readers of Corrente in the days when it didn't have a "wire," has an excerpt from the Church Report up on his site, which is well worth a visit, as is everything else he is talking about on his new blog.