If confirmed, Alito would join at least three other right-wing justices – John Roberts, Antonin Scalia and Clarence Thomas – who believe that George W. Bush should possess near total control of the U.S. government during the ill-defined War on Terror. If Anthony Kennedy, another Republican, joins them, they would wield a majority.
Alito’s theory of the “unitary executive” holds that Bush can cite his “plenary” – or unlimited – powers as Commander in Chief to ignore laws he doesn’t like, spy on citizens without warrants, imprison citizens without charges, authorize torture, order assassinations, and invade other countries at his own discretion.
“Can it be true that any President really has such powers under our Constitution?” asked former Vice President Al Gore in a Jan. 16 speech. “If the answer is ‘yes,’ then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?”
The answer to Gore’s final rhetorical question would seem to be no, there is nothing prohibited to Bush. The “unitary executive” can assert authoritarian – even dictatorial – powers for the indefinite future.
Under this government envisioned by Alito and Bush, Americans would no longer have freedoms based on the Constitution and the law, but on Bush’s tolerance and charity. Americans would, in essence, become Bush’s subjects dependent on his good graces, rather than citizens possessing inalienable rights. He would be a modern-day king.
Resistance
In the face of such an unprecedented power grab, Americans might expect senators from both parties to filibuster Alito and resist Bush’s consolidation of power. But Republicans seem more interested in proving their loyalty to Bush, and Democrats so far are signaling only a token fight for fear of suffering political reprisals.
A meeting of the Democratic caucus on Jan. 18 to discuss Alito drew only about two dozen senators out of a total of 45. The caucus consensus reportedly was to cast a “strategic” – or a symbolic – vote against Alito so they could say “we-told-you-so” when he makes bad rulings in the future. [See NYT, Jan.19, 2006]
But it’s unclear why voters would want to reward Democrats for making only a meaningless gesture against Alito, rather than fighting hard to keep him off the court. An extended battle also would give them a chance to make their case about why they see Alito as a threat to the U.S. Constitution.
A filibuster could give voters time, too, to learn what Alito and Bush have in mind for the country under the theory of the “unitary executive.” If after a tough fight the Democrats lose, they could then say they did their best and the voters would know what was at stake.
Losing, however, might not be the end result. A swing in public opinion is certainly possible if even one senator takes the floor to wage an old-fashioned, “Mr. Smith Goes to Washington” filibuster in defense of the most fundamental principles of the American democratic experiment.
A filibuster could touch a public nerve if it concentrates on protecting the Founding Fathers’ framework of checks and balances, the Bill of Rights, and the rule of law – all designed specifically to prevent an abusive Executive from gaining dictatorial powers.
Secondarily, the filibuster could explain to the American people the need for courage in the face of danger, especially at a time when some political leaders are exploiting fear to stampede the public into trading freedom for security.
Rallying the Nation
If an elder statesman, like Robert Byrd, or a younger senator, like Russell Feingold, started speaking with a determination not to leave until Bush withdraws the Alito nomination, the filibuster could be a riveting moment in modern American politics, a last line of defense for the Republic.
In effect, the filibustering senators would be saying that the future of democracy is worth an all-out congressional battle – and that Alito’s theory of a “unitary executive” is an “extraordinary circumstance” deserving of a filibuster.
A filibuster also could force other senators to face up to the threat now emanating from an all-powerful Executive.
Democrats would have to decide if they’re willing to stand up to the pressure that Bush and his many allies would surely bring down on them. Republicans would have to choose between loyalty to the President and to the nation’s founding principles.
For some senators, the choice might define how they are remembered in U.S. history.
Republican John McCain, whose law against torture was approved in December but was essentially eviscerated when Bush pronounced that it would not be binding on him, would have the opportunity to either demand that the torture ban means something or accept Bush’s repudiation of its requirements.
Democrats who think they have the makings of a national leader – the likes of John Kerry, Hillary Clinton and Joseph Biden – could either demonstrate a toughness for meaningful political battles or confirm their reputations for ineffectual gestures.
The American people also would have a chance to rise to the occasion, showing that they are not the frightened sheep as some critics say, but truly care about democracy as a treasured principle of governance, not just a pleasing word of self-congratulations.
An Alito filibuster could be a galvanizing moment for today’s generation like the Army-McCarthy hearings were in the 1950s when red-baiting Sen. Joseph McCarthy finally went too far and was recognized as a dangerous demagogue.
Dangers
On the other hand, there are reasons to suspect that the Senate will recoil from a battle of such constitutional magnitude.
Democratic consultants already are saying that the Senate Democrats should finesse the Alito confirmation – letting it proceed without a big fight – and then focus instead on corruption as an issue with more “traction.”
This advice parallels the party’s strategy in 2002 when Democratic consultants urged congressional leaders to give Bush what he wanted in terms of authority to invade Iraq so the debate could be refocused on the Democrats’ domestic agenda. That approach turned out to be disastrous, both on Election Day and in the Iraq invasion that followed.
Nevertheless, a similar approach was pressed on Democratic presidential nominee Kerry in 2004. The goal was to neutralize the national security issue by citing Kerry’s Vietnam War record and then shifting the campaign to domestic issues.
So, instead of hammering Bush on his recklessness in the Iraq War, Kerry softened his tone in the days before the election, turned to domestic issues, and failed to nail down a clear victory, allowing Bush to slip back in by claiming the pivotal state of Ohio.
The strategists are back to the same thinking now, urging Democratic leaders to withdraw from a battle over Alito and to keep their heads down over what to do in Iraq, so they can supposedly gain some ground on the corruption issue.
There is, however, no guarantee that corruption will trump national security in November 2006 anymore than domestic issues did in 2002 and 2004.
Even if the Democrats do filibuster, they could still botch it by muddying the waters with appeals about abortion rights. A longstanding Democratic Party tendency is to pander to liberal interest groups even when doing so will hurt the overall cause.
As strongly as many people feel about Roe v. Wade, it would detract from what is of even greater importance in the Alito confirmation, that he would help consolidate the precedent of an American strongman Executive with virtually no limits on his powers.
A disciplined filibuster focused on protecting the Constitution and the Bill of Rights would have a chance of attracting traditional conservatives as well as moderates and liberals in a cause larger than any political grouping.
Indeed, the filibuster could be the start of a grand coalition built around what many Americans hold as dear as life itself, the principles of a democratic Republic where no man is above the law, where no man is king.
