Sammy “The Eel” Alito
Most likely only those with the best endurance survived all 18 hours of the senate confirmation hearings for Samuel Alito. The entire transcript is also available online and runs to hundreds of pages. Reading 50 pages lends a strong feeling of deja vu whereas reading over 100 inspires more a feeling of disenchantment and nausea. Read The Shameless and Spineless by Will Durst (Alternet) for a comic synopsis of the entire transcript (see The hearing so far… (Plastic) for another). Democrats actually did ask pointed questions, but were quickly satisfied with non-answers whereas the Republicans seemed to be competing in an ass-kissing competition while at the same time scolding the Democrats for asking any questions at all.
In this case, reading the primary source material, Alito Transcript (Washington Post) does not lend a more incisive insight than that given by the mainstream press. The press, in this case, is covering the hearing relatively straight — Alito is evasive, answering almost nothing. He makes a lot of noise and constructs “judgy” sentences, but commits to nothing more than vague generalizations. Even when desperate senators try to get him to agree that even the President should not be allowed to murder people, he responds with “[n]either the president nor anybody else, I think, can authorize someone to — can override a statute that is constitutional.” Note how he swerved away at the last second, allowing for a future America in which murder is constitutional. The obvious implication here is that he thinks that saying the President should not be allowed to murder would hurt his approval chances. Funny old country, the US.
Alito is emininently qualified to be a judge if the definition of judge is to emotionlessly and pitilessly pore over prior case law to come to a logical conclusion. He constantly refers to his dedication to “stare decisis” (the use of precedent) as if any decision he has ever made was completely out of his hands and simply required by prior case law. His own inherent conservatism, obvious though unadmitted it may be, never affects his job because he claims to not really decide anything. He’s only doing what any other logical person would do. Sort of a Mr. Spock of the Supreme Court, if you will.
Or even if you won’t. His nomination will go through.
The coverage of the whole CAP affair (in which he was a proud member of a club dedicated to removing women and blacks from Princeton) is also pretty spot-on. It’s so apparent from the testimony that he’s lying, which he does with the best of them, be it Ronald Reagan or Bill Clinton. Or George Bush. This is a small side issue compared to the others on the table, though the obvious one, abortion, is far from the most important. Abortion isn’t likely to be repealed as its repeal would not be sanctioned by enough power brokers in this country. The current tack of making abortion an increasingly more difficult option is one that is satisfactory to most of those trying to kill it.
No, the most important issue is that of his seeming addiction to expansion of executive and police power. As noted above, Alito doesn’t actually have an opinion of his own — he just grudgingly metes out the justice willed by the system. He just happens to grudingly mete it out to the little guy most of the time, deciding overwhelmingly for corporate or governmental plaintiffs or defendants.
The most impressive example of this is the case in which police officers got a warrant for a search, then strip searched any persons they found on the property, including a ten year old girl and her mother. Whereas most people would agree that the American justice system they thought they had should not allow such situations to occur, Mr. Roboto, who was asked to pass judgement on the judgement of another in this case, could find no fault in it. In fact, the affidavit the police turned in indicated that they actually wanted “authorization to search anybody on the premises”. Since that right was granted and the law also says that “[a] warrant is not to be interpreted like a sophisticated commercial instrument that’s drafted by parties”, it was clear to Alito that anything that resulted from this warrant, however unfortunate, was legal.
This is the same kind of attitude you get when you try to return electronics — you know there’s going to be some way they get you to accept that you’re screwed and it’s just out of everybody’s hands because “those are the rules”. That’s not exactly the refreshing attitude you want in a supreme court justice. Especially when that attitude is paired with draconian laws that favor law enforcement so heavily as to allow almost anyone to be “under suspicion”. In that light, it truly isn’t Alito who is solely at fault for these conservative decisions; we should instead throw the blame to our decrepit judicial system as a whole that creates an ever more pitiless set of precedents.
Following in the “obeisance to power” vein were his remarks about executive power. When the rather public subversions of the checks made by the Bush administration are discussed, he answers with his vague characterizations:
“…the whole issue of the extent of the president’s authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.”
Where most would see this issue as a crystal-clear transgression of the system (if that’s allowed, then the whole system is fucked), Alito simply nods his beaming noggin and delivers a tremendous line of blather about constitutional powers that mathematically cancels itself out and allows him to appear to have answered the question when, in effect, he has left open the possibility that, were one to check really carefully, the constitution might, in fact, decree a monarchy.
Even when confronted with President Bush’s recent announcement that he authorized illegal wiretaps on thousands of Americans (a felony), Alito would not bend from his conviction that this, too, may be legal for the President and his underlings. The issue here isn’t whether Alito is right or not. He probably is right — he knows far more about case law and the constitution than most of us do. It’s that he either doesn’t care from an ethical standpoint or approves wholeheartedly. The end result is the same if his opinion is one of the nine that holds sway over this land. Here’s a segment from Russ Feingold:
“You’ve said repeatedly that the president is not above the law. But you’ve also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. … The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law. … And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following — to use your words — the Constitution and laws that are consistent with the Constitution.”
If this is truly the case, this situation should be rectified immediately — the President cannot play God in the USA. Alito, however, seems at best indifferent and at worst pleased by the constitutional situation. He’s content to rely on precedent because the precedent conveys an overwhelmingly conservative system of law onto the US citizenry. There is no reason to think that he’ll actually do anything about fixing some of these gross injustices in the law. That’s not what judges do, according to him. Tanned, Rested Alito Prepares To Be Vigorously Rubberstamped (Plastic) describes one possible scenario:
“It wouldn’t surprise me if a challenge to Roe v. Wade doesn’t come along within the next couple of terms of the Court and Justice Scalito may end up playing a key role in overturning established precedent because he couldn’t find a basis in the Constitution to protect a woman’s right to choose.”
That, in a nutshell, is the dangerous thing about Alito.
If Alito ever does have to have an opinion (which he simply refuses to admit to, but which, with 5000 cases under his belt, he must at some point have had), he is extremely conservative (or, given his deference to corporate power, fascist). Like his compatriot, Justice Roberts, nominated to the Supreme Court just a few months ago, this doesn’t affect his decisions in court at all. Unless it does. Just like Roberts, he claims to be unable to answer any questions on any topics that may come before his current court or, should he be nominated (snicker, wink), the Supreme Court, so he just answers in vague platitudes for hours. Explain Your Evasions by Ralph Nader (CounterPunch) puts it to the point:
“Sitting Supreme Court Justices often have made public speeches, written articles, taught law school classes … expressed opinions and made comments about a variety of controversial legal issues. In so doing, they have not concluded that these public expressions… compelled them either to recuse themselves in cases before them or to consider themselves prejudging these matters pending or likely to come to the Court in the future.”
In light of that, why the hell does Alito get away with that exact copout? Because he can. There are enough Republicans and weak Democrats (Republicans Lite in most cases) to let him cruise on in, so why answer anything those pinko liberals want to know? He’s not obliged to by law and since ethics, morals or fairness don’t enter into it, he won’t answer a thing. It’s all about the robe.
He really doesn’t have to answer their questions on policy? A comment on the previously mentioned Plastic article, Alito = The Imperial Presidency, parrots the popular right-wing argument:
“It’s not [Congress’] job to make sure the nominee’s ideology fits within their (or popular) guidelines, it’s to make sure that the nominee is competent to fill the position.”
Whereas that is correct, it also assumes that the President is nominating judges for their competence and not their ideology. Since Bush has so far nominated his best friend (remember Harriet Meyers) and two arch-conservatives, all bets can be considered off. The law as written may strongly circumscribe the Senate’s power in this case, but since the executive is liberally interpreting law, so can the Senate, if only to preserve a semblance of checks and balances for the suffering American public.
Alito is as good as nominated. His hearing didn’t really show much except confirm what was already known and show that Alito can parry questions with the best of them. What kind of justice will he be? Stuck Between Scalia and Thomas by Ralph Nader (Common Dreams) notes that most legal scholars would put Alito between Scalia and Thomas. Being to the right of Clarence Thomas (yet another non-black black in the halls of white power) is really fucking conservative. On the other hand, The Drifters (Boston Review) tells us “that about one quarter of confirmed nominees over the last half century have wound up ‘evolving from conservative to moderate or liberal.’”. So maybe there’s hope for Alito yet … in 25 years or so.