My last post, Why the Senate Should Not Confirm Alito, called forth quite a few comments. Many, perhaps most, drifted off into tangential terrain. But three quite reasonable questions were raised, and I'd like to address them.
First, why didn't I discuss In re Sealed Case, a lower court decision suggesting that warrantless surveillance may be constitutional in foreign intelligence investigations? The reference to warrantless searches in that lower court opinion was pure dictum. In fact, the search at issue in that case had been authorized by a warrant. The decision had nothing to do with the dictum, which was essentially gratuitous.
Moreover, the other lower court opinions invoked by the court in In re Sealed Case were all pre-FISA, which casts considerable doubt on their continuing relevance. Finally, I had already made clear my view on the Fourth Amendment question in an early post, Bush's Spy Program and the Fourth Amendment, so I didn't think it necessary to rehash that argument. The plain and simple fact is that defenders of the Bush spy program have made too much of these lower court opinions. They are not irrelevant, but they are hardly controlling or even very consequential to the core issue.
Second, why didn't I set forth the specific "evidence" for my conclusion that Alito has a highly deferential view of the judicial role when it comes to executive assertions of authority and, relatedly, why do I see Alito differently from Roberts in this regard? Frankly, all one has to do is to read a meaningful sample of Judge Alito's opinions on the court of appeals to learn both that he is an extremely able craftsman and that he sides almost reflexively with the standard "conservative" position in each case, without regard to whether that calls for judicial passivism or judicial activism. Of course, in some cases, especially in the lower courts, the law is so clear that there is no real room for a judge's "philosophy" to shape the outcome. But in those cases in which there was such room, Alito's results followed the predictable conservative line almost without exception. I make this point not as a criticism of Judge Alito's integrity or skill. A similar observation could be made about many able judges on both ends of the philosophical spectrum. Rather, my point is that Alito is, in fact, very predictable, and I am quite confident of my prediction about his votes in executive authority cases, at least as long as George Bush remains president. In any event, it was in this manner that I discerned Alito's views, not by parsing his non-answers before the Senate Judiciary Committee. And, by the way, if any of you really believes I'm wrong about this prediction, I suggest you stay away from casinos until your head clears!
Why do I distinguish between Roberts and Alito? After reading their opinions (Alito, of course, has many more to read), I found Alito a bit more knee-jerk than Roberts. But that wasn't the point of my post. It was, rather, that with the Bush administration's claim that the president could lawfully authorize warrantless NSA wiretapping of American citizens on American soil, I realized just how far this administration is prepared to push the envelope. In other words, it was less a difference between Roberts and Alito than a change in my sense of the magnitude of the stakes that led me to oppose Alito even though I supported Roberts. I probably would have come out in favor of Alito and against Roberts had the order of their nominations been reversed. In my view, the legal landscape changed in a significant and relevant way with the revelation of the Bush spy program.
Third, some commentators took me to task for saying that the Senate should give more weight to judicial excellence than judicial philosophy, but then turning around and opposing a nominee I concede to be an excellence craftsman and thinker. But there is no inconsistency here. "More weight" is not the same thing as "decisive weight." A Supreme Court nomination is not a tenure case, where the sole issue is supposed to be the excellence of the candidate's work rather than whether one agrees or disagrees with her views. A Supreme Court nomination is, and always has been, a political process. The president seeks to appoint justices whose views he wants represented on the Court, and members of the Senate are free to reject nominees if they disagree with those views. For practical reasons, senators usually give presidents the benefit of the doubt. Otherwise, the nomination and confirmation process could become paralyzed. But there is a limit to how far that benefit of the doubt should go. If a president is making highly politicized nominations, or if the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president's choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work. In my view, the combination of two very ideological appointments, back-to-back, at a time when the issues likely to come before the Court are destined to pose serious threats to constitutional rights, easily justifies a "no" vote on this nomination.