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January 22, 2006


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Kimball Corson

To my lights, you expansively hit the bullseye dead on, Geof. Alito is more than a little dangerous. If confirmed, we should all join his wife and cry.

Part of the problem seems structural. Is it best for the nation, in light of your analysis, that the President have the right of appointment during wartime, declared or not, especially if competence and integrity are to be the only standards for nominee review? Perhaps the House should nominate and the Senate confirm during wartime to prevent the Chief Executive from stuffing the Court then with nominees who would compromise the balance of powers and the Bill of Rights in favor of expanded executive power. The President has a built-in conflict of interests during wartime because he has also sworn to uphold the Constitution. He therefore needs to be checked. Or perhaps, the standards of review during such times should include, as you are implicitly suggesting, a nominee’s record on aggressively upholding the Bill of Rights and on aggressively protecting the separation of powers, as well as his or her competence and integrity.

It is clear that in regard to what we have, something is missing.


I hope our senators Durbin and Obama read this entry and use arguments such as this one to justify and maintain a fillibuster. The question it raises is - what is the legality of the so-called nuclear option? This compromises the balance of power within the senate to a remarkable extent. Are there procedural means to block this power grab?

Kimball Corson

Geof writes,

"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. . ."

Given what he has done, why cannot Bush be impeached? Is this not by far a more serious breach of law and a violation of his oath of office than Clinton's sexual peccadillo and protective fib, and does it not matter and affect much more the people of this nation? Should not Senators Durbin, Obama and other Democrats be thinking along these lines as they consider their options? If the case were well presented, the Senate just might bite. Why should impeachment be reserved for vindictive foolishness?

The real problem with this argument is that Cheney, the advocate of torture (and wire taps), stands in line behind Bush. However, either are very popular these days, even within their own party. Too, it is hard to argue well in favor of torture and unconstitutional, illegal wire taps, even with the threat we face.

Perhaps both could be impeached, . . . a pleasant thought at the very least.

The Law Fairy

Brilliantly written, Professor Stone. Thank you for pointing some much-needed light in the direction of the real problem with Alito. While it's easy to criticize Bush's pick for upsetting the jurisprudential balance on the Court, or for further entrenching institutionalized racism and sexism by overlooking just-as-qualified women and minorities, this is the best *legal* reason to find fault with Bush's latest pick.

It is troubling indeed that our senators themselves seem too beholden to political rhetoric and interest group influence to notice what's truly at stake here. Someone needs to sound the alarm -- I certainly hope that there are senators, or at least legislative aides, who read this blog and give Alito's confirmation a second thought.

Michael Martin

SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson's concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.

ALITO: I do.

I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn't answer every question that comes up in this area, but it provides a very useful way of looking at them.

SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," when she was citing the Youngstown case? Do you agree with that?

ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.

SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."

Do you stand by that statement?

ALITO: I certainly do, Senator.

The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.

Kimball Corson

Timely post, Michael Martin.

The key question, Michael, is are we to believe what he says here or what he has said, done and written elsewhere and earlier? The doctrine of revealed preference should carry the day, as economist George Stigler used to say.

We also know that Alito tends to say or write what he needs to when there is a job he wants at stake. That he is aware of the problems with his judicial philosophy and here pays lip service to its critics is even more troubling because, again, it is an issue going to his integrity.


"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."

Are you suggesting that Lincoln's suspension of the writ of habeas corpus was a needless sacrifice of our liberties?

Kimball Corson

If the test, generally or in war time, should be the nominee’s competence, integrity and his or her record on aggressively upholding the Bill of Rights and on aggressively protecting the separation of powers, as Professor Stone here suggests, has not Alito now failed on both the second and third prong?


"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."

And what was different about John Roberts in this regard? Both Roberts and Alito endorsed the Youngstown framework in their testimony. What did Alito say or fail to say that was any different from Roberts, who you endorsed?

Also, didn't Justice Scalia, who like Alito believes in the "unitary executive," vote against President Bush in the Hamdi litigation? I don't see the link between belief in the "unitary executive" and deference to the President's war powers.

Kimball Corson


To my mind, it is less a question of adopting the Youngstown framework and what has been said so far in the nomination process than it is the opinions and dissents Judge Alito has handed down. The deference is not just to governmental executive power, but also to executive power of all stripes and as well as to decision-makers below. Too often Alito goes against the individual and individual rights. At least we can expect Chief Justice Roberts to pause and think, absence the influence of a Justice Alito, but Alito in this quarter is much more predictable, and disturbingly so as I see it.


Although Professor Stone may be right about how a Justice Alito will rule in executive power cases, I know of no new evidence for his conclusion.

As is pointed out above, his testimony in the Senate Hearings was reassuring, it seemed to me, on this question. Both Justice Roberts and Judge Alito adopted the "Youngstown" approach to deciding this question. In fact, the only differences I have been able to see between them might be in some 4th Amendment and other criminal cases. Even this conclusion is tentative because Judge Roberts did not decide very many criminal appeals on the DC Circuit.

Judge Alito was a Federal prosecutor and not surprisingly, tends to see criminal cases from that perspective. But this fact has been known since he was nominated. His controversial criminal case law dissents have been discussed for months.

What then has caused Professor Stone to change his mind? If it's something new, I for one would appreciate knowing it.


Yawn. McCarthyism ... double-yawn.

Good thing virtually no one cares what Professor Stone thinks. Certainly not a majority of the Senate.

Roll on Justice Alito.

George Liebmann

I agree with the last commentator. Plainly Judge Alito does not believe in an imperial judiciary. That does not make him a believer in an imperial executive. While I do not share the past sentiments he has expressed about a unitary executive, I have not observed many of his critics, in contexts other than his nomination, upholding the principle of the Humphrey's Executor case. How many of them have, for example, urged fixed terms for U.S.Attorneys, as Edward Levi did for the FBI Director ? Civic courage consists in being prepared to curb abuses by one's own faction; there is some evidence of this in Alito's opinions, and little of that in the records of most of his critics. Alito's opinions are intelligent, restrained, and exhibit a primary allegiance to the legal process; his reaction against judicial inventions is to his credit in this respect. He has unambiguously and without hedging embraced the Jackson opinion in Youngstown. The comment seems to me fundamentally irresponsible; where is there hope for a better nominee, and who indeed would be one?

George Liebmann

My post erroneously endorsed the comment of the preceding commentator. I meant to refer to the more seemly comments of the one before him.


"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."

Actually, it was the FISA Court of Appeals that stated that the President had that inherent legal authority. Please see In re: Sealed Case No. 02-001.
Page 48.

From the ruling: "The Truong court, as
did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional
authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."

What is shameful is that you are certainly aware of this ruling yet dishonestly chose to ignore it.

If the Left is so right and the Right is so dangerous, then why must the Left lie?


So, the President could not conduct warrantless surveillance of Americans who were aiding a foreign army that had invaded the US? If he could do so, what distinguishes this hypo from our current war with al-Qaeda?

Just wondering.

Kimball Corson

While Todd's comment is somewhat troubling, the FISA Court of Appeals' opinion was itself at the edge on the question and likely not the last word on the matter. That court did suggest that the warrantless surveillance may not meet the requirements of the Fourth Amendment (p.56), but only after reciting the litany that we are seriously threatened by terrorism and alluding to, while not addressing the President's inherent powers, in order to get to a balancing test, as though inherent powers and the threat somehow threw the surveillance over the constitutional fence.

This overdrawn view of the threat is in the same vein as Magistre68's arguably implied suggestion that al-Qaeda is a 'foreign army invading the USA.” Both the FISA Court and Magistre68 overreact to the true threat. The twin towers fell not by any plan or therefore anyone’s intent, but by engineering oversight pursuant to which all ignored the heat generated by the exploding fuel in the planes and the inertia of the falling upper floors. Bin Laudin himself was surprised the towers came down but, of course,was delighted.

Aside from 9/11 and the happenstance of what occurred that day, where are the invading armies? While Bush will tell us he has secretly foiled them all, the truth is Bin Laudin seeks a truce: if only we will leave Saudi Arabia and Iraq and moderate our support of Israel, terrorist efforts will cease. His position on what he and fundamentalist Arabs want has been clear for years. So who has and controls the invading army on foreign soil: us or the supposed terrorists. While I admitted this is broad brush, am I missing something major here, or are we just being thick and obtuse, in compromise of our own Bill of Rights?

Michael Martin


Actions speak louder than words, but an economic hypothesis about revealed preferences of an individual (as opposed to an aggregate group) doesn't say much about either. Economics makes for poor psychology. I hope that (as Richard suggests) Prof. Stone has some inside scoop about Alito. Else I find the attacks on Alito's character (yours express, Stone's perhaps implied) hysterical.


I am happy to agree with George Liebmann's comments.

Professor Stone has changed his mind about Judge Alito, but his comments unfortunately offer no solid reasons for doing so.

I would venture the opinion that Judge Alito should be much more to Professor Stone's liking than Harriet Miers would have been.

Kimball Corson

Michael and Richard,

Read Alito's opinions and especially his dissents to understand why he doesn't protect individual rights or the Bill of Rights and why he excessively defers to any one in authority unduly, indeed, to the point of all but abdicating his review responsibility at times. I believe that these are the reasons Professor Stone has come to believe competence and integrity are not enough in this case and Alito should not be confirmed. The Bill of Rights and the Separation of Powers doctrine are seriously threatened by Alito, in light of his opinions.

As to Alito's integrity, it fairs very poorly in regard to (1) his exchange with Specter, as provided here by Martin, when his comments are measured against the opinions he has written, (2) his problem and comments regarding the Vanguard case, and (3) his comments and effort to distance himself from his CAP membership set out on his earlier resume. Ailto's integrity comes off badly in each of these situations and we should be concerned.

Niels Jackson

Stone concludes:

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.

But Stone doesn't even attempt to provide an argument on this point. Where has Alito made it "clear" that he "has no interest" in such matters? Is it too much to expect legal scholars to justify their opinions with a citation or two?


Stone's concern for executive overreach is of course well established as evidenced by his vigorous opposition to Bill Clinton's

a) restrictions on firearms by executive order, including the arbitrary classification of guns as highly regulated NFA weapons by executive order;

b) Bill Clinton's administrations abuse of FBI files of the administration's critics;

c) Clinton's undeclared war pursued without UN sanction against Kosovo;

d) Clinton's illegal appointment of Bill Lan Lee;

e) Bill Clinton's unlawful use of executive orders to put vast swaths of the western United States beyond lawful commercial exploitation etc .etc.

No such record exists, in fact. Let's face it. Stone is a leftist and an anti-war pacifist dressing up these political preferences as part of a coherent legal philosophy, when, in fact, his earlier failures to criticize Clinton's executive overreach reveal that his real passion is for leftist political outcomes. Of course, this should be no great scandal, especially to him. In Elements every year, Stone spends a quarter telling students the jig is up, there is no such thing as correct legal reasoning, previous pretentions to legal reasoning were what Marxists would call "ideology" resting on the foundation of economic and political power relations, and that legal "realism" demands that we pursue the "right" policy answers, i.e., leftist ones, while dressing up these pursuits as authentic legal reasoning that presupposes a correct "legal" answer to legal questions.

Speaking of legal realism, consider for a moment the pervasive "judge-worship" of lawyers and the legal academy, most notably in Stone's comment. The unstated assumption of this viewpoint is that the political branches, filled with the hoi polloi and such, will get out of control and sully our constitutional order without the intervention of enlighted lawyers. As a policy matter, I find this courts as sainted protectors of separation of powers to be fundamentally flawed, not least because (a) lawyers have an institutional interest in perpetrating this view, even if it leads to bad (procedure-rich) policies and (b) there is nothing in this schema to restrain the courts themselves and (c) this criticism ignores the importance of winning wars and makes little provision for doing so. Instead, no matter what the issue, there is always a call for more procedure that involves the courts and lawyers. In a world where the outline of a helmet or a rifle can lawfully get you a .50 cal bullet in your head from 1000m (even if it turns out the shooter is wrong), it seems kind of silly to say that months of hearings on end are required to classify, for example, armed Arabs found in Afghan battlefields as enemy combatants or to listen in on phone calls made to or from Khalid Sheikh Mohammad, even if they originate in New Jersey.

Brent Money

Is this what passes for "brilliantly written" legal commentary by a prominent liberal academician? Not one quote or citation from Alito's 15 years of judicial service. No explanation of the elementary distinction between the scope of presidential power and the "unitary executive." No mention of the 1986 DOJ memo written by Alito that discusses the legal and political problems with implementing the AG's decision to trumpet presidential signing statements.

I'm getting used to unsubstantiated liberal screeds from the nation's leading newspapers. I would think a person of Professor Stone's stature could provide at least a semblance of an intellectual debate. The fact that he cannot decries the problems even the most accomplished liberals have making an intelligent case against judicial restraint and conservative Constitutional interpretation. The fact that other liberals have praised this blog post shows that they so desperately they need to believe and promote their own cerebral superiority, they are unable to see this feeble attempt at substantive criticism for what it truly is.

The Law Fairy

Actually, Roach, Profs. Strauss and Sunstein teach Elements, not Prof. Stone -- at least, not while I attended the law school from '02 to '05.

Even if, as you imply in your post, Prof. Stone is an intellectual hypocrite, how does this by itself make his point any less valid? The answer is that it doesn't. It's an ad hominem attack, plain and simple.

I guess both conservatives *and* liberals are guilty of using whatever arguments they can to "win." Depressing.

Mary McLemore

You assert that Alito "...has certainly made clear that he has no interest in restraining the acts of this commander-in-chief.”

Based on? You don't offer a single piece of evidence in support of your contention. If that is what passes for reasoned argument in law schools these days, we're in worse shape than I suspected.

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