Pretend, for a minute, that I am not completely paranoid and that there is truth behind my sense that we are all missing the real story of the new Supreme Court nominations. My fear is that we are all snoozing through an elaborate plan to pack the court for the Bush administration's war on terror. What if all the obsessive talk about whether candidates are for or against overturning Roe v. Wade is a strategic head feint? What if I am right, and Samuel Alito is confirmed to the Supreme Court without ever substantively answering a question about torture, enemy detentions, the rights of foreigners, or civil liberties during wartime?
I think we will, all of us, be very sorry. Not just the edgy civil libertarians or the ACLU types, and not just Jose Padilla, or his attorneys, but everyone who believes there is a place for the rule of law even in the midst of a war, especially when that war threatens to go on forever.
This president—for reasons that hardly warrant repeating here—doesn't really want to be remembered as the guy responsible for the court that overturned Roe. (Although he certainly wants us to think he wants to be remembered as that guy.) No, Roe is not what keeps George W. Bush awake nights. What he wants to be remembered for is winning the war on terror. He wants to be seen as the president who carried the great torch of democracy into the world's darkest corners. And he believes—of this I am certain—that the courts are standing in his way.
I have written before that the arc of his Supreme Court nominations can best be explained by his desire to pack the courts for all of the Hamdan, Hamdi,and Padilla cases to be heard by the courts for years to come. Think about it: Roberts, Miers, and Alito each have a long track record of endorsing executive power. Each seems highly likely to strongly support the president's claims to virtually limitless executive authority in wartime. The Bush administration saw that claim repudiated by a margin of 8-1 in Hamdi. And the president won't let that happen again.
It won't. How do I know? In his 15 years on the federal bench, Judge Samuel Alito has yet to rule on a case substantively involving the war on terror. But Alito's votes in pending and future war on terror cases can be fairly accurately predicted. They lurk in dark alleys, near his decisions about criminal rights, immigration cases, and government power. Alito's record in none of those areas bodes well for people who worry about the Bush administration's push for unchecked war powers.
Robert Gordon has written in Slate, for instance, that in his survey of the criminal and Fourth Amendment cases Alito heard as an appeals court judge, he adopted the position most supportive of the government every time. Justice Antonin Scalia is a conservative who has crafted a healthy jurisprudence of doubt about limitless government powers. Alito, on the other hand, is a former prosecutor who has seemingly never met a search, seizure, warrant, or arrest he couldn't love.
Similarly, Emily Bazelon just wrote about a memo Alito penned on whether there should be any constitutional protection for an unarmed teenage boy shot and killed by a police officer as the youth fled a crime scene. Alito's personal position—that there was no constitutional protection from such conduct—was more extreme than some other Reagan administration lawyers, the Supreme Court's eventual ruling in the case, the dissenters on that Supreme Court, and more than 85 percent of police departments at the time. It's hard to conceive of someone who loves police powers more than the police. But that someone may be our next Supreme Court justice.
This cavalier disregard for defendants of every stripe was also explored recently by Goodwin Liu, in a survey of Alito's death penalty decisions in the Los Angeles Times. Liu found that of the 10 capital cases in which Alito has participated, five were decided unanimously by three-judge panels and the other five engendered split decisions. In every one of the five contested cases, Alito voted against the defendant. Moreover, concludes Liu, "these opinions show a troubling tendency to tolerate serious errors in capital proceedings," including some shockingly erroneous jury instructions.
Which brings us to Alito's record on the rights of immigrants and foreigners. His views on this score were illuminated last week by documents released from his 16-month tenure as a deputy assistant attorney general in the Justice Department's Office of Legal Counsel. In one memo,Alito signed off on an FBI plan to collect fingerprint cards of Iranian and Afghan refugees living in Canada. He suggested that the program was constitutional because these refugees were nonresident immigrants of another country, thus freeing the FBI from abiding by court decisions that barred the agency from spreading "stigmatizing'' information about U.S. citizens. Alito simply feels that nonresident immigrants of other countries have no due process rights under the Constitution. The Washington Post last week quoted Martin Redish, a constitutional law professor at Northwestern University Law School, arguing that Alito's logic would likely support the Bush administration's current policy of CIA interrogations in secret European prisons as well.
Despite the Bush administration's urgings to deny review, the Supreme Court recently agreed to hear the next big war on terror case, Hamdan v. Rumsfeld. Justice Sandra Day O'Connor, author of perhaps the most famous words in the post 9/11 struggle between the courts and the executive—"[a] state of war is not a blank check for the president"—will not be on the court to decide it. Samuel Alito, who has made a judicial career out of writing, signing, and endorsing blank checks—will.
Sen. Lindsey Graham, R-S.C., has promised to use the Alito hearings to probe the nominee's views on executive power. The senator says he'll focus on "when does the executive branch's power end and when does Congress' power end." We can hope that Graham's effort will amount to more than rambling half-questions that the nominee can fob off under the guise of "not prejudging issues likely to come before the court."
The courts, and specifically the Supreme Court, have been willing to push back against the executive's relentless power grab, albeit by a sometimes narrow margin. If Judge Alito is unwilling or unable to talk about his positions in this area of law, we should assume, based on his record, that he would rubber-stamp the administration's citizen detention, habeas corpus, and torture policies. If that is the case—and his confirmation becomes a referendum on the acceptability of such policies—he would, and should, fail to be confirmed by a large bipartisan majority.