Let the confirmation games begin!

Democrats seem to be drawn to unwinnable battles the way moths are drawn to flames. And so, as if to prove my Democratic bona fides, I hereby join the good fight to stop Judge Samuel Alito. It may seem like an impossible dream, but politics are all about the art of the possible.

I note with interest that the Confirmation hearings are scheduled to begin on Monday, and according to NBC evening news, the pro-confirmation forces are expected to bring witnesses on his behalf including sitting Federal judges. I wonder what Sam Alito thinks of that, especially in light of the Code of Judicial Responsibility, which states:

Canon 7. A Judge Shall Refrain From Political Activity
A. A judge shall not:
...
(2) make speeches for a political organization or candidate or publicly endorse a candidate for public office;
...
C. A judge shall not otherwise engage in any political activity.

What if Democrats want to respond in kind, and present sitting federal judges to oppose Alito? (Surely there is still someone left on the Federal bench who believes that a woman should have a legal right to control her own body.) Well, I am sure you would want to be an appellate judge whose decisions are to be reviewed by someone you testified against.

What really matters is what will Sam Alito say. Bear in mind this is a guy whose defense to saying regrettable things in the past was, “Hey, I only said that to get a job!”

Now, here’s how it works. First you get him to say what he thinks people want to hear. This is easy, because he’s that kind of a guy. Trust me on this; I’ve seen the type before.

Then, get him talking about the separation of power doctrine. It’s a safe bet that he’s going to be in favor of it, by which I mean he will say he’s in favor of it. Actually, he is so incredibly out of the mainstream on this that if his views are fairly presented the public will have none of it. You can read all about it here.

Sam Alito is the genius who thought up Presidential signing statements of the sort I wrote about in Bush to Congress: Drop Dead!

At the time I wrote that, I was focused on the torture issue, but the President thumbed his nose at Congress on a variety of issues. To the right is the picture of him thumbing his nose, as it subsequently appeared on Huffington Post.

Here is another quote from the signing statement:

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.

Translation: King George W’s attitude to laws passed by Congess is more or less like the attitude of Captain Barbossa in Pirates of the Caribbean regarding the Pirate Code:

“They’re more like guidelines”

That’s scary enough. But wait! There's more. The trick is to ask Judge Alito (after he has sung a tune about the genius of the founders vis a vis separation of powers) what he thinks about the persuasive authority of these executive signing statements. He can be questioned based upon his paper trail regarding these. There’s the chance that he will tell a fib, and that’s one way that he can shoot himself in the foot. (Oh, please, God!) The other way is that he will say something like he has in the past, generally to the effect that executive intent is co-equal to legislative intent. The legislature will not be content with this.

With the domestic spying scandal moving along, and this, there is a real possibility that someone is going to bring up the fact that the strong executive that he envisions is so far from what the founders had in mind, that he will have to forfeit all claim to being a strict constructionist.

Who knows? Maybe the pendulum will swing away from this crazy view of the limits of presidential power embraced by King George W. Maybe Sam Alito’s big contribution to the development of Constitutional law will occur in his confirmation hearings. Maybe they will be non-confirmation hearings.

We can only hope. The thing that will tell us that we have a chance is if there is any extended discussion about the concept of the “unitary executive branch.” Keep watching for this.

”… and tell ‘em Big Mitch sent ya!”