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January 6, 2006 PERMALINK
Executive Power Issue Gains Traction Before Alito Hearings
(posted Jan. 6 1:30 AM ET)

The issue of Alito’s support for unchecked, unbalanced presidential power -- discussed here on Wed. -- is the issue gaining traction as we head into next week’s hearings.

Yesterday’s Wall Street Journal had a front page story about Alito’s support of the “unitary executive” theory, which, as the paper reported, is “an expansive view of presidential powers that [Alito] and his colleagues set forth while working in ... the Reagan Justice Department.”

(It is that theory which Bush cited when he claimed last week that no body could stop from mistreating detainees.)

MSNBC.com reports that Senate Dems plan to make Alito’s record on presidential power a “dominant” issue next week.

Sen. Chuck Schumer led off with the issue in a sweeping speech before the Center for American Progress and the American Constitution Society on the Alito nomination.

And a Fox News curtain-raiser piece also placed executive power as the top of the list of issues Dems will focus on.

What impact will this have on the forthcoming debate?

1. It’s Not All About Abortion

Of course, it never was. But that was often the perception fostered by the media. Now, they can’t say that.

This is a helpful development because, as LO has noted before, while there is clear pro-Roe majority, that majority is less intense that the anti-Roe minority.

The issue is not powerful enough to sink the nomination on its own.

In fact, no single issue is. To beat Alito, we have to show that there is a critical mass of issues where Alito is on the wrong side.

Is reproductive freedom a big part of that mix of issues? Absolutely, especially because Alito’s anti-Roe record is so crystal clear, and so unpopular.

But the debate needed to be widened. Now it has.

2. It’s Not About What Justice Sunday Says It Is

Justice Sunday III, the third multimedia rally for a right-wing judiciary sponsored by the fringe fundamentalist Family Research Council, is set for Jan. 8, a day before the Alito hearings begin.

The goal of the event to frame the debate on their terms, about “how activist judges seek to end all mention of God in the public square.”

This follows last month’s attempt to portray Alito as the defender of Christmas.

The problem with that: this year’s “War on Christmas” – an extension of the Right’s claim that Christianity is under attack from liberals -- was a fizzle, if not an outright joke.

The “War on Christmas” book, relentlessly plugged by Fox, was a bust.

And David Letterman surely spoke for many apolitical Americans when he told Bill O’Reilly that he thought O’Reilly made the whole “War” up.

That’s not exactly a head of steam for the Right to ride.

Furthermore, even the Family Research Council’s head, Tony Perkins, is feeling obliged to tip his hat to concerns about Alito’s executive power views, in deference to the anti-government strain among his members.

Since its focus is out of sync with the issues of the moment, Justice Sunday would appear poorly timed and likely will be ineffectual at shaping the debate to come.

January 5, 2006 PERMALINK
Anti-Alito Ads Hit The Right Target
(posted Jan. 5 1:15 AM ET)

Liberal activists kicked off the pre-Alito hearing ad campaign the right way yesterday, pounding Alito on his lack of credibility.

A (weaselly-worded) NY Times piece about the ads says liberals are “moving beyond his legal views to attack his character and credibility instead.” In all likelihood, that is a complete misanalysis.

That makes it sound like this is a last-minute low-blow desperation shift in tactic.

More likely, it is simply a stage-setter for next week’s hearings, planting the seed in the public’s mind that when you see Alito painting himself as a reasonable moderate, there is ample reason not to take his word at face value.

The immediate goal is to prevent Alito from getting the last word when he testifies.

Because if he does, and the public buys that he’s fair-minded and mainstream, all the issue-based criticism in the world won’t matter.

During the hearings and beyond, the arguments and ads against Alito will surely evolve, focusing on specific issues, emphasizing how an Alito confirmation will inflict harm on Americans.

The only problem with the new ad campaign is that it’s barely attracting any media attention, though that is not necessarily the fault of the activists.

With the Abramoff plea bargain, the WV mining tragedy, and the Ariel Sharon health crisis, there is a lot of heavy news keeping the Alito preliminaries on the back pages this week, making it harder for anti-Alito messages to be heard, and for opposition to build momentum.

Nevertheless, Dem senators should follow the ad campaign’s lead, amplify its messages, and hammer Alito’s credibility as they press him on his judicial philosophy and specific issues.

January 4, 2006 PERMALINK
Unchecked Presidential Power: Alito and Bush Both Agree!
(posted Jan. 4 12:45 AM ET)

Alito’s belief in unchecked, unbalanced presidential power is garnering fresh attention in light of the warrantless spying scandal.

An even more recent development than that scandal puts a fine point on what Alito’s legal views would mean if he occupied the swing seat on the Supreme Court.

That is Bush’s signing, last Friday, of the bill which included what’s known as the McCain Amendment, banning torture of detainees.

As Balkinization and MyDD have noted, Bush included a “signing statement” along with the bill, which read in part:

The executive branch shall construe [the provision] relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks.

As Balkinization said, “Translation: I reserve the constitutional right to waterboard when it will ‘assist’ in protecting the American people from terrorist attacks.”

Or as MyDD said: “I'm the President, and you can't enforce jack.”

Wait a second, you might say, what the hell is a “signing statement” anyway?

It’s a concept cooked up by Sam Alito, back when he was in the Reagan Justice Department, to diminish the weight of the congressional record and increase the weight of the president’s whims when the Supreme Court interprets the law.

Bush is a big fan of Alito's signing statements, though as the W. Post noted, the Supreme Court has not given them nearly as much weight as congressional debate when determining a law’s intent.

Sounds innocuous so far? Hold on.

This particular signing statement from Friday didn’t just merely offer a slightly different take on the law than Congress

It asserted presidential authority to unilaterally interpret the law, since he is head of the “unitary executive branch.”

What’s a "unitary executive branch?"

It’s a right-wing legal concept that says the president has “unitary” powers, particularly when it comes to national security, that are checked by nothing, not even the Supreme Court.

Who’s a big backer of the “unitary executive” concept?

Why Sam Alito! He embraced it in a speech to the right-wing Federalist Society in 2001.

Who else? The guys in the Bush Administration who wrote the infamous torture memos.

And of course, Bush himself, who has cited his “unitary” powers about 100 times in various statements and orders.

Bush believes by simply asserting authority in a “signing statement,” the Supreme Court cannot force him to follow the law and the Constitution when investigating Americans and interrogating prisoners.

Alito, who supports the “unitary executive” and masterminded the “signing statement,” agrees and will happily keep the Supreme Court off Bush’s back.

Talk about a Constitution in Exile.

January 3, 2006 PERMALINK
GOP Tries To Psyche Out Dems Before Alito Hearing
(posted Jan. 3 12 AM ET)

In the Alito nomination, the pre-hearing jockeying has begun, with yesterday’s NY Times piece, “Alito Team Says He Lacks Polish, but Grit Is a Plus,” a piece clearly planted by the GOP.

Part of the GOP agenda was to lower the expectations for Alito performance, at least when it comes to style.

MyDD rightly noted this defensive GOP party line exposes a lack of confidence in Alito’s presentation skills.

But there was another component of the planted story that was not overtly defensive, and was intended as a more aggressive salvo:

[One] participant [from Alito’s rehearsal sessions] said[] Judge Alito displayed a "street smart" New Jerseyan's willingness to talk back to his questioners.

Unlike Chief Justice Roberts, Judge Alito often turned inquiries back on the lawyers who were quizzing him, politely asking them to spell out exactly what they meant, two participants said.

Judge Alito "had no bones about coming back for clarification," the same person said, adding that the judge sometimes stumped the legal experts acting in the roles of senators and suggesting that he could pose an even greater challenge to actual senators reading from staff talking points.

Still, both participants emphasized that during the practice sessions, Judge Alito never became heated or combative.

That is an attempted psyche-out aimed at Dem Senators on the Judiciary Cmte, in effect warning Dems, “don’t think about aggressive questioning of Alito, lest you want to be humiliated and exposed as a partisan hack empty suit.”

Of course, if they were actually eager to unleash Alito on Senators, there’d be no need to telegraph any such “warning.”

The reality is that a combative Q&A is the last thing Alito wants.

Combative questioning leads to a “controversial nominee” media narrative and increased media attention.

Whereas soft questioning minimizes press coverage and makes it harder for Dems to whip up the anti-Alito sentiment among the grassroots needed to sustain an extended filibuster.

Before the John Roberts hearings, LiberalOasis offered this advice:

The Judiciary Cmte senators must not treat this in their typical fashion: windy opening statements followed by arcane legalistic questioning.

They must recognize that for the public to see what Roberts is really all about, they cannot sit back and expect Roberts to tell them.

He can only be counted on to give empty and/or disingenuous answers full of legalese.

The only way for the public hear the truth about Roberts is for the senators to tell it.

But telling it in long opening statements is not going to get on the TV news. You need sparks, fireworks, sharp exchanges.

And you need to strike first in your questions. They must be pointed. They must put Roberts on the defensive.

Let your question reveal the real Roberts with clear language. Let Roberts defend himself with legalese.

This advice, of course, was not taken then.

But since Alito has a far longer paper trail than Roberts did, it is now easier advice to take.

And as the NY Times article shows, it’s advice the GOP does not want Dems to heed during next week's hearings.

January 2, 2006 PERMALINK
The Sunday Talkshow Breakdown
A weekly feature of LiberalOasis
(posted Jan. 1 11:30 PM ET)

Republicans, predictably, are trying to turn the warrantless spying scandal around and use it further reinforce the Dem stereotype of being weak on national security.

And, on yesterday’s talk shows at least, Dems are so intimidated that they’re pulling their punches and missing opportunities to turn the stereotype around.

GOP Sen. Mitch McConnell on Fox News Sunday (as well as Dubya himself later in the afternoon to a pool of reporters) defended warrantless spying as necessary to national security, while attacking “the leak” that exposed the program as damaging to national security.

Here’s McConnell:

The Democrats, of course, were completely outraged in the Valerie Plame case that allegedly a classified matter was leaked ... the national security was not endangered in that situation.

But here, where clearly we're talking about intercepts with people who are communicating internationally and potentially plotting another 9/11, they don't have apparently the same kind of outrage.

This is a much more important investigation and should go forward. And I applaud the Justice Department for beginning it.

And here’s Bush:

...the fact that somebody leaked this program causes great harm to the United States.

There's an enemy out there. They read newspapers, they listen to what you write, they listen to what you put on the air, and they react...

...They attacked us before, they will attack us again if they can. And we're going to do everything we can to stop them.

Translation: it’s the Democrats and the liberal media that are harming our national security, not our illegal warrantless spying.

In the face of such aggressive attacks, Dems should not flinch.

They should be arguing that the GOP approach of wanton power-grabbing and disregard for constitutional checks and balances leads to a mismanaged, unbalanced terror war, where the only plot that has been stopped was one that already had been called off because it was so poorly thought out.

Instead we get this from Sen. Chuck Schumer, on Fox News Sunday:

...I think everyone, Democrats and Republicans, wants to give the president the tools that he needs to fight the war on terror...

...But the way our country works is the balance between security and liberty is a very delicate one.

And obviously, in times of war, in times of terrorism, the balance shifts towards security, and it should.

There are some on the doctrinaire left who say never change it. I don't agree with that. Almost no Democrat does.

But when you want to shift that balance, you have an open debate, you have some rules that are set, and then you have an independent arbiter look at those rules...

...And the problem here is that the president thought there was a problem. That's legitimate.

But instead of coming to people and saying okay, I need changes in the law, he just changed it on his own...

...You don't just change it because the president wants to change it. You have a debate. You go to Congress.

In most cases the president gets the changes he wants.

Translation: Hey George, if you wanted to spy on Americans without bothering with warrants, why didn’t you just ask us?!

Over at CNN, Sen. Dick Durbin was served up a softball question about Bush’s failure to capture Bin Laden, and he failed to swing:

WOLF BLITZER: Here's what a lot of people, Senator, are saying. I get tons of e-mails.

The United States, great superpower, greatest military, huge intelligence budget. Osama bin Laden still at large. Ayman al-Zawahiri, the number two, still at large. Abu Musab al Zarqawi, terrorist number one in Iraq, still at large.

Why is it so hard, Senator Durbin...to find these guys?

DURBIN: Obviously, if they are still alive ... they're being secreted away some place with the help of others.

But I've been through these briefings.

I can recall a few months after our invasion in Iraq sitting down and getting a briefing and having someone, an intelligence agent point to a place on a map about the size of a quarter and say, this is where Osama bin Laden is and we're going to get him.

They were so confident -- this was three years ago -- and it's clear to me that they overstated the capacity of the agencies to find people like that...

...It obviously is an extremely difficult thing if this person is protected.

Translation: Don’t blame Bush, fighting terror is real hard!

How about mentioning that the Bush Administration took it’s eye off the ball by unnecessarily invading Iraq instead of staying focused on Al Qaeda?

How about arguing that warrantless fishing expeditions are not just illegal, they’re not effective at stopping terrorism?

(Don’t buy that last argument? Check out yesterday’s W. Post op-ed from Michael Hirsh: “...the [National Security Agency] conducts broad-based surveillance indiscriminately over communications lines that few bad guys even use any longer... the smartest terrorist groups have long since stopped talking about their plans over cell phones or land lines -- or to the extent they do, it's probably to plant disinformation.”)

Neither Schumer or Durbin seized the offensive yesterday.

And if Dems want to win the short-term argument about warrantless spying, and win the long-term argument over which party is better for national security, they better start.

The Blog Wire
Tracking the liberal blogosphere

Night Light: The W. Post mischaracterizes its own study of Alito's record

ACSBlog: "Alito's confirmation would create a pro-business court, according to business interests interviewed by the AP"

MyDD: Alito Supports Illegal Wiretaps

Balkinization: "It has nothing to do with the slowness, or cumbersomenss, of the FISA Court -- it's simply that the surveillance in question would not meet FISA standards. That is to say, the FISA court would not grant approval because these searches are unlawful."

War and Piece: "Depressing must-read WaPo expose of the miserable beginnings and middles of the Department of Homeland Security. Could be the plot for a British Fawlty-Towers style sit-com. But sadly, many people lost their lives in New Orleans because of this ..."

Earthjustice: "This is the first time in nearly 20 years that Earthjustice has opposed a Supreme Court nominee."

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