December 29th, 2005
Sandy Levinson explains why Samuel Alito’s ascension to the Supreme Court
is so important to the White House, and it’s not Roe v. Wade:
Judge Alito and Executive Power:
Key to any answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the “Commander-in-Chief” Clause of Article II of the Constitution. Dick Cheney has apparently been obsessed since his own service as Gerald Ford’s Chief of Staff with returning the presidency to the “imperial” status that was, he thought, the victim of Watergate. For him the Bush Administration is about rolling back what are perceived as illegitimate incursions on raw presidential power.
This concern helps to explain John Roberts appointment as Chief Justice. Recall that then-Judge John Roberts gave the Administration a major victory in the D.C. Court of Appeals in the Hamdan case literally the week before he was nominated to the Supreme Court…. Roberts is likely to be a dependable ally of the President. There is also the important detail, ignored by almost all of the press, that one of Roberts’s prerogatives as Chief Justice is the ability to appoint, without any checks from his colleagues or the Congress, federal district judges to the Federal Intelligence Surveillance Court and then federal circuit judges to serve on the three-member court of appeals from decisions of the FISC. As University of Pennsylvania Law School Professor Theodore Ruger has importantly demonstrated, Chief Justice Rehnquist was prone to appoint conservative Republicans to serve on that Court, which is the first line of defense against overreaching by the Executive in wiretapping and other forms of surveillance….
The stakes are simply too high to allow any deference at all to this president (and vice-president), whose hunger for power, if tolerated, will transform us into a country that none of us should wish to live in.