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Alito's oneeyed reverse telescope view of the Bill of Rights

NYT Editorial

Alito's Zeal for Presidential Power

Published: December 24, 2005

"With the Bush administration claiming sweeping and often legally baseless authority to detain and spy on people, judges play a crucial role in underscoring the limits of presidential power. When the Senate begins hearings next month on Judge Samuel Alito, President Bush's Supreme Court nominee, it should explore whether he understands where the Constitution sets those limits. New documents released yesterday provide more evidence that Judge Alito has a skewed view of the allocation of power among the three branches - skewed in favor of presidential power.

"One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans. Judge Alito argued for taking a step-by-step approach to establishing this principle, much as he argued for an incremental approach to reversing Roe v. Wade in another memo.

"The Supreme Court flatly rejected Judge Alito's view of the law. In a 1985 ruling, the court rightly concluded that if the attorney general had the sort of immunity Judge Alito favored, it would be an invitation to deny people their constitutional rights.

"In a second memo released yesterday, Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a "signing statement" about what the law means. By doing so, Judge Alito hoped the president could shift courts' focus away from "legislative intent" - a well-established part of interpreting the meaning of a statute - toward what he called "the President's intent."

"In the memo, Judge Alito noted that one problem was the effect these signing statements would have on Congressional relations. They would "not be warmly welcomed by Congress," he predicted, because of the "novelty of the procedure" and "the potential increase of presidential power."

"These memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power - notably when he voted to strike down Congress's ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power."

Not that this is likely to be warmly embraced here (particularly given the source) despite his patent inclination to contravene civil liberties and shrink the protections offered by the Bill of Rights in his opinions.


There is another frontpage article in Dec 24 NYT about NSA eavsdropping and sifting outgoing telephone and e-mail communications that I find unexceptionable. Seems to me that screening overseas communications and looking for trouble is the NSA's job, court order or no court order. I just don't think they should be monitoring protest groups.

Wish I could post the cartoon by Nick Anderson of the Republican mouthpiece (in the guise of an elephant protecting Bush cowering at the back of a podium raised 30 feet in the air on the logo 9-11) pointing at a single tiny woman (you-know-who)way down on the ground with a sign reading "Why did my son die in Iraq?". The elephant is screaming "SHE"S EXPLOITING TRAGEDY FOR POLITICAL PURPOSES". Just learning from the master (Karl Rove) I guess.

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