January 12, 2006
Judge Alito’s Confirmation Battle, The Unitary Executive,
and Other News from the Front
By Ronald
A. Cass
After several
days at the hearings on Supreme Court nominee Samuel Alito, it’s
painfully clear that the Senate hasn’t made strides in either
civility or understanding of legal issues since the John Roberts
hearings a few months ago.
Changing the Guard
At the Roberts hearings, some of the Democrats on the Senate Judiciary
Committee made clear that they were not going to use the old-fashioned
approach to judicial confirmations. They wanted commitments on
outcomes, especially on how a would-be justice would vote on the
abortion right established in Roe v. Wade. They were
not going to give a nod to anyone simply because the nominee was
unquestionably competent and had the requisite personal propriety
to be a judge.
Apart from all-out battles over the Bork and Thomas nominations,
Senators generally had adhered to the competence-plus-propriety
test for nominees over the past century. They tended, after questioning
the nominee, to accept that the judge wasn’t going to say
that much about how he or she would vote. And, in fairness, Senators
understood that the judges couldn’t say much without
seeming to be bargaining promises of future votes on cases for
a current vote to confirm. The Senators then cast 90-plus votes
to confirm Justices Ginsburg, O’Connor, Kennedy, Souter,
and Scalia. Justice Breyer just missed this mark, with 89 Senators
in favor and only 7 opposed.
Last fall, however, there was a sense of changing times. First,
there was the intense grilling of now-Chief Justice Roberts, someone
who prompted no particular political passions and had been associated
with no public causes. Then there were the 22 “no”
votes against this obviously well-qualified nominee.
Now, the hearings are media events directed equally at interest
group supporters and potential backers for higher office. Now,
Senator Kennedy gives an updated version of his “Robert
Bork’s America” speech from the hearing room, instead
of the Senate floor. And the old ethos of backing qualified nominees
you don’t expect to agree with is badly frayed.
Trench Warfare
Now, even the changes visible in the Roberts hearings seem just
the beginning of the new regime. Where the Roberts hearings opened
with a “history in the making” feel, the Alito hearings
are the political equivalent of trench warfare. Battle lines are
drawn. Troops are dug in. Both sides are willing to endure the
fighting, even though there is little prospect of a change in
positions.
The warfare taking place in the Hart Senate Hearing Room, like
real trench war, is mostly a low-key, slow moving affair, punctuated
by occasional bursts of bombast. It resembles trench warfare,
too, in its air of embedded hostility and immovable forces lobbing
cannonades at one another. The nominee is almost an afterthought.
The hearing, like its predecessors for the last three decades,
is largely about abortion. Senators who support abortion rights
– and whose supporting interest groups demand fidelity to
Roe – scrape and claw, wheedle and badger, trying
to get the nominee to commit to a position on abortion. Abortion
opponents, for their part, counter, explaining why they believe
it is so important not to enshrine Roe as, in the words
of the Committee Chairman, a “super-duper precedent.”
To give abortion questions in these hearings any traction, the
Left labels each new Republican nominee The One Who Could Tip
The Balance. No one in this long-running, slow-motion battle has
made headway for years. No one seems ready to change positions.
No nominee is going to declare a position on such a contentious
matter, one that is almost certain to come before the Court. In
short, after all the questions, responses, parries, and anguish
over this topic, everything is just where we knew it would be.
The Unitary Executive
Democrats, however, have pushed another topic to center stage
this week, sensing that the public has tuned out on abortion.
The new topic is generating more heat and more confusion than
the old staples of confirmation fights. The new issue is executive
power, and especially what Judge Alito’s commitment might
be to the concept of the “unitary executive.”
This phrase has been used repeatedly in the hearings, as Judge
Alito has been queried about why he is a fan of the concept and
why he gave remarks praising it to the Federalist Society. (Senate
Democrats don’t know much about the Society, but they regard
it as a cross between the Freemasons and a satanic cult, only
with better suits.) The typical exchange asks something like this:
“Can you tell us, Judge Alito, why you favor a theory of
government that removes any constraint on executive power and
makes the President the unchecked, unreviewable authority over
everything the government does?” Frequently, the questioner
asks Judge Alito to defend the theory of “the unitary form
of government.”
A unitary government, one in which there was a single
branch and a single authority, would scare pretty much anyone
concerned about liberty. It certainly would have scared the Framers,
who gave us a tri-partite government replete with checks and balances
to prevent any branch from exercising too much control. The Framers
were especially concerned with the legislative branch. They were
worried that the legislature would prove too powerful, dominating
the other branches. The Senators tend to worry exclusively that
the legislature doesn’t have enough power, either
over the President or over the courts.
Revelations of NSA’s electronic eavesdropping program, set
up to obtain better information, post-9/11, on foreign threats
to our domestic security, have provided a launching point for
concerns over executive power. Democrats repeatedly return to
this theme: Here’s an executive branch trammeling the rights
of Americans and a nominee who embraces the theory that the President
can do no wrong. Pretty scary, huh?
The Theory: For Real
Of course, the theory of the “unitary executive,”
as Judge Alito has explained ad nauseam, has nothing at all to
say about the scope of executive power. It has nothing to say
about how that power is granted or how it is checked.
Instead, the theory says that “the executive power shall
be vested in the President of the United States.” Those
are, in fact, the words of the first clause in Article II of the
Constitution. This means that the President is in charge of the
executive branch and that executive power is to be given to people
who work for – and are in important ways controlled by –
the President. This means that Congress can’t pass a law,
even with the President’s approval, giving executive authority
to people who work for Congress or for the courts.
Taken seriously, the theory of the unitary executive would require
some reorganization of the “independent” agencies,
especially the Federal Election Commission and the US International
Trade Commission, the two agencies most insulated from presidential
control and most subject to legislative control. Taken seriously,
the theory would have invalidated the Independent Counsel law,
upheld in Morrison v. Olson over the prescient dissent
of Justice Scalia. Democrats drafted the law in the 1970s and
vigorously supported the law when it was challenged in the 1980s,
but by the late 1990s they were reading verbatim from Scalia’s
critique. Go figure.
Theory and Practice: Re-trenching
Of course, this isn’t where the story ends. The theory isn’t
the end of the story because, although Judge Alito finds it interesting
and in some ways compelling, he doesn’t decide cases on
theory. He recognizes all of the Supreme Court precedents that
pull away from the vision of a unitary executive, and says that
he’ll start from them, not from the theory, to resolve cases
that come before him.
That’s pretty much the same answer Judge Alito has given
in every area. He understands the theory, but he’s going
to start with the cases and the Constitution, with what the document
says and what other judges have said. It’s the standard
way judges approach the job.
Until just recently, that’s also all that judicial nominees
needed to say. Perhaps when Senators stop making accusations and
speeches, aimed more at interest groups and the media than the
nominee himself, confirmations will return to hearings instead
of battles.
Mr. Cass is President of Cass & Associates, PC, a legal
consultancy in Great Falls, VA, former Vice-Chairman of the US
International Trade Commission, and Dean Emeritus of Boston University
School of Law. He has recently become the Chairman of the Center
for the Rule of Law, an independent center of international scholars
analyzing rule of law issues.
