I supported the confirmation of John Roberts and, until recently, the confirmation of Samuel Alito. I have reluctantly come to the conclusion, however, that Judge Alito should not be confirmed, and that this is a matter of real importance to the nation.
Judge Alito is a smart, experienced, and knowledgeable jurist. I have no doubt of his legal ability. I do not share either his judicial philosophy (apparently a mixture of quasi-originalism and social conservatism) or his views about many issues likely to come before the Supreme Court (ranging from the right to privacy to federalism). In such circumstances, I ordinarily would support his confirmation. On balance, the Senate should give more weight to excellence than judicial philosophy, and that is why I endorsed the confirmation of John Roberts.
Why, then, should the Senate deny confirmation to Judge Alito? The most fundamental responsibility of the Supreme Court is to preserve both the separation of powers and the individual liberties guaranteed by our Constitution. They are the bulwarks of our freedom. History teaches that these indispensable elements of our constitutional system are most threatened in time of war. Too often in wartime, the President demands excessive authority in his role as “commander-in-chief” and the President and Congress run roughshod over civil liberties in their effort to protect, or appear to protect, the nation.
This was true when Lincoln suspended the writ of habeas corpus, Roosevelt ordered the internment of more than 110,000 individuals of Japanese descent, Nixon ordered unlawful break-ins and wiretaps against those who opposed the Vietnam War, and Congress enacted the Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940. We hope, of course, that Presidents and members of Congress will act with restraint and wisdom. But we know that, in times of crisis, they frequently overreact to the perceived danger, manipulate public opinion, and needlessly sacrifice our liberties.
In our constitutional system, the last line of defense against such excesses is the Supreme Court. With life tenure, the Justices are largely insulated from the need to please any particular constituency for personal advancement. And with their unique commitment to long-term principle rather than short-term political expediency, they are well placed to resist the fears and anxieties of wartime.
Through our history, the Court has had a mixed record in fulfilling this responsibility. During World War I, the Court upheld the convictions of individuals for criticizing the war; during World War II, it upheld the internment of Japanese-Americans, and during the Cold War, it initially upheld the persecution of American citizens because of their political beliefs and associations.
At other moments, however, the Court has performed admirably. During the Korean War, it held that President Truman had exceeded his constitutional authority as commander-in-chief when he sought to take over the steel industry; in the latter part of the Cold War, it held unconstitutional government actions directed against “disloyal” Americans; during the Vietnam War, it rejected both the President’s effort to enjoin the publication of the Pentagon Papers and his claim that he could constitutionally conduct “national security” wiretaps without judicial warrants; and during the war on terrorism, it rejected Bush’s claims that he had the “inherent” authority to deny habeas corpus to individuals detained at Guantanamo Bay and that he could unilaterally decide to detain American citizens indefinitely without even a hearing on whether they were in fact “enemy combatants.”
The single most critical factor that distinguishes the decisions in which the Court failed from those in which it succeeded was the character and constitutional philosophy of the Justices serving at the time. Those Justices who abdicated their responsibility and chose blindly to defer to excessive presidential claims approved the pervasive suppression of dissent during World War I, the Japanese internment, and the rampant abuses of McCarthyism. Those who were determined to ask hard questions and to insist that the President and Congress comply with the Constitution gave the nation the steel seizure decision, the Pentagon Papers decision, and the 2004 decision preserving the due process rights of American citizens.
Now, President Bush arrogantly asserts that he has the inherent constitutional authority to wiretap American citizens on American soil without first obtaining a warrant, in direct defiance of federal legislation and the Fourth Amendment. This is on top of his previous assertions of inherent authority to employ torture, wiretap lawyer-client communications, confine American citizens incommunicado, and close deportation and other legal proceedings from public scrutiny.
Given the times in which we live, we need and deserve a Supreme Court willing to examine independently these extraordinary assertions of executive authority. We can fight and win the war on terrorism without inflicting upon ourselves and our posterity another regrettable episode like the Red Scare and the Japanese internment. But that will happen only if the Justices of the Supreme Court are willing to fulfill their essential role in our constitutional system.
Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate – Republicans and Democrats alike – to deny his confirmation to the Supreme Court of the United States.