Why the Senate should not confirm Alito
- From: Voter <voter1@xxxxxxxxx>
- Date: Tue, 24 Jan 2006 17:34:22 GMT
Why the Senate should not confirm Alito
Supreme Court doesn't need a justice who has no interest in restraining
`presidential powers'
By Geoffrey R. Stone
Published January 24, 2006
I supported the confirmation of John Roberts Jr. to the U.S. Supreme Court
and, until recently, the confirmation of Samuel Alito Jr. I have
reluctantly come to the conclusion, however, that Judge Alito should not be
confirmed and that this is a matter of real importance to the nation.
Alito is a smart, experienced and knowledgeable jurist. I have no doubt of
his legal ability. On balance, the Senate should give more weight to
excellence than judicial philosophy.Why, then, should the Senate deny
confirmation to Alito? The most fundamental responsibility of the Supreme
Court is to preserve both the separation of powers and the individual
liberties guaranteed by our Constitution. They are the bulwarks of our
freedom. Yet history teaches that these indispensable elements of our
constitutional system are most threatened in time of war. Too often in
wartime, the president demands excessive authority in his role as commander
in chief and the president and Congress run roughshod over civil liberties
in their effort to protect, or appear to protect, the nation.
This was true when Abraham Lincoln suspended the writ of habeas corpus,
Franklin D. Roosevelt ordered the internment of 120,000 individuals of
Japanese descent, Richard M. Nixon ordered unlawful break-ins and wiretaps
against those who opposed the Vietnam War, and Congress enacted the
Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940.
We hope, of course, that presidents and Congress will act with restraint
and wisdom. But we know that, in times of crisis, they frequently overreact
to perceived danger, manipulate public opinion and needlessly sacrifice our
liberties.
The last line of defense against such excesses is the Supreme Court. With
life tenure, the justices are largely insulated from the need to please any
particular constituency for personal advancement. And with their unique
commitment to long-term principle rather than short-term political
expediency, they are well-placed to resist the fears and anxieties of
wartime.
Through our history, the court has had a mixed record in fulfilling this
responsibility. During World War I, it upheld the convictions of
individuals for criticizing the war; during World War II, it upheld the
internment of Japanese-Americans; and during the Cold War, it initially
upheld the persecution of American citizens because of their political
beliefs and associations.
At other moments, however, the court has performed admirably.
During the Korean War, it held that President Harry Truman had exceeded his
constitutional authority as commander in chief when he sought to take over
the steel industry; in the latter part of the Cold War, it held
unconstitutional government actions directed against "disloyal" Americans;
during the Vietnam War, it rejected Nixon's effort to enjoin the
publication of the Pentagon Papers and his claim that he could
constitutionally conduct "national security" wiretaps without judicial
warrants; and during the war on terrorism, it rejected President Bush's
claims that he had the "inherent" authority to deny habeas corpus to
individuals detained at Guantanamo Bay and could unilaterally decide to
detain American citizens indefinitely without even a hearing on whether
they were in fact "enemy combatants."
The single most critical factor that distinguishes the decisions in which
the court failed from those in which it succeeded was the character and
constitutional philosophy of the justices serving at the time. Those
justices who abdicated their responsibility and chose blindly to defer to
excessive presidential claims approved the pervasive suppression of dissent
during World War I, the Japanese internment and the rampant abuses of
McCarthyism. Those who were determined to ask hard questions and to insist
that the president and Congress comply with the Constitution gave the
nation the steel seizure decision, the Pentagon Papers decision and the
2004 decision preserving the due process rights of American citizens.
Now, Bush arrogantly asserts that he has the inherent constitutional
authority to wiretap American citizens on American soil without first
obtaining a warrant, in direct defiance of federal legislation and the 4th
Amendment. This is on top of his previous assertions of inherent authority
to employ torture, wiretap lawyer-client communications, confine American
citizens incommunicado and close deportation and other legal proceedings
from public scrutiny.
Given the times in which we live, we need and deserve a Supreme Court
willing to examine independently these extraordinary assertions of
executive authority. We can fight and win the war on terrorism without
inflicting upon ourselves and our posterity another regrettable episode
like the Red Scare and the Japanese internment. But that will happen only
if the justices of the Supreme Court are willing to fulfill their essential
role in our constitutional system.
Whatever else Alito may or may not have made clear about his views on such
issues as abortion, federalism and religious freedom, he has certainly made
clear that he has no interest in restraining the acts of this commander in
chief. That, in my judgment, poses a serious threat to the nation and is a
more than adequate reason for the Senate--Republicans and Democrats
alike--to deny his confirmation to the Supreme Court.
http://tinyurl.com/dkzow
----------
Geoffrey R. Stone is a law professor at the University of Chicago and the
author of "Perilous Times: Free Speech in Wartime from the Sedition Act of
1798 to the War on Terrorism."
.
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