Letter to the Editor

[This is a letter I submitted to my local paper as a letter to the editor. - Liam]

Opposing Judge Alito for the right reasons


As the confirmation vote on Judge Samuel Alito draws nearer, the Democratic party has chosen to focus on the likely overturn of Roe v. Wade if Alito is confirmed. They point to surveys which supposedly show that the majority of Americans don't want Roe overturned. This is not the reason why I oppose Judge Alito.

Others have focused on Judge Alito's alleged record of lying, promising to recuse himself on certain types of cases and then refusing to do so when faced with a case that matched with eerie similarity the hypothetical case he'd been presented with. This is also not the reason to oppose Judge Alito.

Still others point to Judge Alito's record of findings in favor of government and big business over private citizens, often with shaky legal foundation (so shaky, they say, he's got among the highest level of overturned verdicts on appeal). This, while frightening, is also not the best reason to oppose Judge Alito.

The reason we should all fear Judge Alito is that he subscribes to the Unitary Executive Theory of U.S. government. The President, so the theory goes, is the only one granted executive power (aka power over execution of laws) by the Constitution, and so therefore, any oversight of or checks on that power is unconstitutional.

The problem with this theory is that it ignores the fact that our whole system of government is set up with endless checks and balances, in order to prevent any one person or small cadre of people from wielding too much power. Proponents of the Unitary Executive branch (such as Judge Alito and also President Bush) envision a United States in which the President has almost monarch-level powers. They argue that nothing the President does can be considered unconstitutional, because by definition, to restrict his powers to execute the business of the country is itself unconstitutional.

The founders of this country, in their great wisdom, recognized that power corrupts in direct proportion to how much power is held and inverse proportion to how many checks and balances stand in the way of raw brandishing of power. The Unitary Executive theorists have brought us such frightening abuses of power as:

• Warrantless wire tapping of American citizens, when the FISA court's "72 hours retroactive" warrant rule could easily have been followed.
• A signing statement on the McCain anti-torture bill which essentially says that the President feels free to ignore the law when it suits his purposes.
• Designating a new class of criminal, "enemy combatant" and declaring them devoid of rights, even in the case of American citizens (such as Jose Padilla, arrested in the United States, taken to Guantanamo Bay, and held without charge or even the basic rights guaranteed by our Constitution, on the mere say so of our President).

We need strength in all three branches of government in order for the checks and balances to work. If we cede the judiciary to the Unitary Executive proponents, we open the door for this Administration or a future one to decree that throwing political enemies in prison is vital to national security, or suspend an election on the theory that a change of power might weaken the nation.

Our government is a three-way tug of war. To put someone into one of the branches who has decided to pull in the direction of one of the other two sets us on a dangerous and destructive path.

Samuel Alito would be, by all reports, such a Justice. We really can't afford to have him on the Supreme Court.

Liam Johnson