"A Wretched Hive Of Scum And Villainy": Part Three--Give Them a Rope And They Will Hang Themselves.
Do not blame me, I did not choose the "title" for this series. This is all Thomas' idea.
The rope I refer to are the words of the Left on the Committee. I know a few people will bring up the fact that I am starting with Sen. Specter. Well-founded as I point out where he starts.
SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.
In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language.
And the court went on to say, quote, "The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives."
Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.
How would you weigh that consideration on the woman's right to choose?
ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.
And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.
It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
SPECTER: Let me move on to another important quotation out of Casey.
Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy."
Do you see the legitimacy of the court being involved in the precedent of Casey?
ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances.
That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires.
SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?
ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.
Sen. Specter just received a spanking. Not only did he not get out of Judge Alito a mistake--that being a slobbering admission that he would vote to overturn Roe--but he also thoroughly explained the jurisprudential thought revolving around the cases he was asked about. Casey has been highly contentious over the last few months--mostly due to the departing Justice O'Connor as many consider her opinion in Casey was a crowning achievement of her career. But Sen. Specter did not end there. Further along in his questioning, we heard this.
SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."
Do you stand by that statement?
ALITO: I certainly do, Senator.
The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.
SPECTER: Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States.
Yes, we knew the conversation would get to here before too long.
SPECTER: First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote?
Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps?
Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements?
How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act?
And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format?
ALITO: Well, probably the first consideration would be to evaluate the statutory question. And you outlined some of the factors and the issues that would arise in interpreting the statute, what is meant by the provision of FISA that you quoted regarding FISA, the Foreign Intelligence Surveillance Act, being the exclusive means for conducting surveillance.
And then, depending on how one worked through that statutory question, then I think one might look to Justice Jackson's framework. And he said that he divided cases in this area into three categories: where the president acts with explicit or implicit congressional approval; where the president acts and Congress has not expressed its view on the matter one way or the other; and the final category, where the president exercises executive power and Congress -- and that is in the face of an explicit or implicit congressional opposition to it.
And depending on how one works through the statutory issue, then the case might fall into one of those three areas.
But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court.
That was a checkmate moment for Sen. Specter. Not exactly a good moment for the senator as Judge Alito just refused to give in and tell him how he would rule. Sen. Leahy was up next, and this particular piece was riotous; Judge Alito conitnued to hand Sen. Leahy the same answer, and you can see Sen. Leahy try to talk down to him--as if he were the monkey in the cage--and the judge simply beats on him.
LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture.
They tried to redefine torture, and they asserted, I quote, "that the president enjoys complete authority over the conduct of war," close quote.
And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional." They seem to say that the president could immunize people from any prosecution if they violated our laws on torture.
And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public.
Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy.
What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?
ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court.
Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States.
Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.
LEAHY: Well, let's go into one of those specifics.
Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?
ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point.
And I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don't make their way to the judiciary or they're not resolved by the judiciary; they're resolved by the other branches of the government.
LEAHY: But, Judge, I'm a little bit troubled by this because you said yesterday -- and I completely agreed with what you said -- that no one's above the law; no one's beneath the law. You're not above the law. I'm not. The president's not.
But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law?
I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was saying, "But that won't apply to me or people that I authorize."
Doesn't that place not only the president but anybody he wants above the law?
ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president -- and it's set out expressly in the Constitution -- is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.
But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.
LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?
ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.
LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.
I think that Judge Alito was playing a bit with Sen. Leahy. Sen. Leahy tried to really nail him down, and made a buffoon of himself. He made laughing-stocks out of the Democrats on the committee. This was a clear sign of the desperation on their behalf. Thomas pointed out in his initial post that the Democrats are already considering ending their questioning tomorrow, and going to panel on what would have been the third day of questioning. They are truly running out of options.
This simple fact was assured prior to the hearings engagement. Judge Alito has been professional, as up front as he possibly can be, and precisely "puzzling" to the Left. The Democrats are running on 33 1/3 speed while Judge Alito is running rings around them at 78 speed. There is no possible hope for stopping him. Thomas may be correct in predicting a closer vote, but we are in an election year. I would be willing to wager that the Democrats up for reelection will vote in favor of Judge Alito.
But for right now, it is funny to watch these people--at a loss for words, tactics, or strategies that will work--do their best. And to look back at Chief Justice Roberts, a baseball analogy comes to mind in this meeting of the minds.
Watching the Democrats try to beat Judge Alito is like watching a group of little leaguers go up against the Yankees.
The Bunny ;)
Do not blame me, I did not choose the "title" for this series. This is all Thomas' idea.
The rope I refer to are the words of the Left on the Committee. I know a few people will bring up the fact that I am starting with Sen. Specter. Well-founded as I point out where he starts.
SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.
In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language.
And the court went on to say, quote, "The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives."
Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.
How would you weigh that consideration on the woman's right to choose?
ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.
And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.
It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
SPECTER: Let me move on to another important quotation out of Casey.
Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy."
Do you see the legitimacy of the court being involved in the precedent of Casey?
ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances.
That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires.
SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?
ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.
Sen. Specter just received a spanking. Not only did he not get out of Judge Alito a mistake--that being a slobbering admission that he would vote to overturn Roe--but he also thoroughly explained the jurisprudential thought revolving around the cases he was asked about. Casey has been highly contentious over the last few months--mostly due to the departing Justice O'Connor as many consider her opinion in Casey was a crowning achievement of her career. But Sen. Specter did not end there. Further along in his questioning, we heard this.
SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."
Do you stand by that statement?
ALITO: I certainly do, Senator.
The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.
SPECTER: Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States.
Yes, we knew the conversation would get to here before too long.
SPECTER: First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote?
Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps?
Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements?
How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act?
And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format?
ALITO: Well, probably the first consideration would be to evaluate the statutory question. And you outlined some of the factors and the issues that would arise in interpreting the statute, what is meant by the provision of FISA that you quoted regarding FISA, the Foreign Intelligence Surveillance Act, being the exclusive means for conducting surveillance.
And then, depending on how one worked through that statutory question, then I think one might look to Justice Jackson's framework. And he said that he divided cases in this area into three categories: where the president acts with explicit or implicit congressional approval; where the president acts and Congress has not expressed its view on the matter one way or the other; and the final category, where the president exercises executive power and Congress -- and that is in the face of an explicit or implicit congressional opposition to it.
And depending on how one works through the statutory issue, then the case might fall into one of those three areas.
But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court.
That was a checkmate moment for Sen. Specter. Not exactly a good moment for the senator as Judge Alito just refused to give in and tell him how he would rule. Sen. Leahy was up next, and this particular piece was riotous; Judge Alito conitnued to hand Sen. Leahy the same answer, and you can see Sen. Leahy try to talk down to him--as if he were the monkey in the cage--and the judge simply beats on him.
LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture.
They tried to redefine torture, and they asserted, I quote, "that the president enjoys complete authority over the conduct of war," close quote.
And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional." They seem to say that the president could immunize people from any prosecution if they violated our laws on torture.
And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public.
Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy.
What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?
ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court.
Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States.
Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.
LEAHY: Well, let's go into one of those specifics.
Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?
ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point.
And I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don't make their way to the judiciary or they're not resolved by the judiciary; they're resolved by the other branches of the government.
LEAHY: But, Judge, I'm a little bit troubled by this because you said yesterday -- and I completely agreed with what you said -- that no one's above the law; no one's beneath the law. You're not above the law. I'm not. The president's not.
But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law?
I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was saying, "But that won't apply to me or people that I authorize."
Doesn't that place not only the president but anybody he wants above the law?
ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president -- and it's set out expressly in the Constitution -- is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.
But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.
LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?
ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.
LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.
I think that Judge Alito was playing a bit with Sen. Leahy. Sen. Leahy tried to really nail him down, and made a buffoon of himself. He made laughing-stocks out of the Democrats on the committee. This was a clear sign of the desperation on their behalf. Thomas pointed out in his initial post that the Democrats are already considering ending their questioning tomorrow, and going to panel on what would have been the third day of questioning. They are truly running out of options.
This simple fact was assured prior to the hearings engagement. Judge Alito has been professional, as up front as he possibly can be, and precisely "puzzling" to the Left. The Democrats are running on 33 1/3 speed while Judge Alito is running rings around them at 78 speed. There is no possible hope for stopping him. Thomas may be correct in predicting a closer vote, but we are in an election year. I would be willing to wager that the Democrats up for reelection will vote in favor of Judge Alito.
But for right now, it is funny to watch these people--at a loss for words, tactics, or strategies that will work--do their best. And to look back at Chief Justice Roberts, a baseball analogy comes to mind in this meeting of the minds.
Watching the Democrats try to beat Judge Alito is like watching a group of little leaguers go up against the Yankees.
The Bunny ;)
posted by Syd And Vaughn | 7:40 PM
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