Things to look for in the Alito hearings

As we approach the confirmation hearings for Supreme Court nominee Samuel Alito (they begin next Monday), here are a couple of items from his past that you can expect to figure prominently in the questioning.  I’ve added emphasis to note particularly controversial bits.

From a 1985 job application (pages 15-16):

“I believe very strongly in … the legitimacy of a government role in protecting traditional values…. In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment…. Most recently, it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help advance legal positions in which I personally believe very strongly.  I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion…. I am a life-long registered Republican ….  I am a member of the Federalist Society for Law and Public Policy … and a member of the Concerned Alumni of Princeton University, a conservative alumni group.

From a 1985 memorandum discussing how and whether the U.S. should intervene in a case involving abortion rights, and in particular, whether a particular recordkeeping requirement was constitutional (p. 17):

As for the “chilling effect” on physicians, it is hard to take this argument very seriously.  Doctors are subject to a host of recordkeeping and reporting laws.  In truth, what probably chills them is not the thought of filling out abortion reports or the wildly unlikely prospect of criminal prosecution for an abortion-related offense but the thought of a visit from an IRS agent investigating tax shelters.

From a 1984 memo on whether to ask the Supreme Court to afford the Attorney General absolute immunity from suit on illegal wiretapping (p. 6):

I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here.

From a 1986 memorandum on expanding the use of presidential signing statements:

Under the Constitution,

a bill becomes law only when passed by both houses of Congress and signed by the President (or enacted over his veto).  Since the President’s approval is just as important as that of the House or Senate, it seems to follow that the President’s understanding of the bill should be just as important as that of Congress.

* * *

- What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls? Is the law totally void? Is it inoperative only to the extent that there is disagreement?  [David notes: wow - even to suggest these possibilities is quite radical]

- If presidential intent is of little or no significance when inconsistent with congressional intent, what role is there for presidential intent? Is it entitled to the deference comparable to that customarily given to administrative interpretations?

This last point – the relevance of presidential signing statements – seems arcane, yet it may actually be one of the most important issues the Senate will face, since it bears directly on the power of the executive branch in interpreting and executing congressional legislation.  Consider, for example, the lengthy signing statement that President Bush issued last week when signing the law containing the McCain torture amendment.  It contains this nugget:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

Again, seems arcane, but it’s hugely important.  Some of the implications of Bush’s position are explained in this post over at Balkinization.  It’s fascinating that the White House took this step right after Alito’s memo on signing statements became public.

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2 Comments . Leave a comment below.
  1. Bad Lawyer, Bad!

    You cite Alito in 1986:

    "Since the President's approval is just as important as that of the House or Senate, it seems to follow that the President's understanding of the bill should be just as important as that of Congress."

    Last time I looked the President's approval was not "just as important as that of the House or Senate:" she can be overruled by a 2/3 vote of both Houses.

    Am I missing something, or does Alito not know that a Presidential veto can be overruled by the Congress? If the latter, everyone better reconsider this appointment and someone should dig up the man's bar exam and make sure it was graded correctly.

    • The quoted passage ...

      contains a parenthetical: "(or enacted over his veto)," so he's aware (of course) of the possibility of a veto override.  Yet he doesn't consider the relevance of that procedure, if there is any, in his analysis.  It's hard to say what was really going on with this memo - as I noted, some of its suggestions are really quite radical, and it strikes me as highly unlikely that a relatively junior member of the staff would embark on a project like this on his own.  Undoubtedly this was someone's pet project and Alito was asked to see what he could come up with on it (that's also reflected in the intro to the memo).  Should make for some fun questions and answers.

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