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.

Ronald Cass

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