Today you begin the highly-important task of deciding whether our next Justice of the Supreme Court will be Samuel Alito or someone else. We the People of the United States are watching with great interest as you go about this job, which only you are authorized to do.
Earlier, we watched as you gave your Constitutional Consent, without fully understanding his views, to the nomination of John Roberts as Chief Justice. He dazzled you with his obvious legal brilliance, and then he gave some lame excuses for not telling you everything you needed to know. And you lamely accepted them, blinded as you were by his legal brilliance. Now he is on the Court, for better or for worse, probably for life. And now now we will find out, after it is too late, what his real views are.
Three serious flaws have now become apparent in the existing method of nominating and approving Supreme Court candidates, and these flaws need to be identified and corrected immediately, before they do any more harm. Only after they are corrected can you properly do your job of judging the merits of the Samuel Alito nomination.
The first and most obvious flaw in the process is that President Bush has sought no meaningful advice from the Senate before presenting his nominations. Perhaps he has consulted with a selected few individual Senators, but his bizarre nomination of Harriet Myers proves that only a very few, if any, were consulted in her case; and his nomination of the highly-divisive Samuel Alito proves that he heeded only the advice offered by the most extreme elements of his Party, in his case. In the future, the Senate should refuse even to consider any nomination for which its advice was not sought and heeded by the President. You have the Constitutional Right to reject any candidates you find unsatisfactory, for whatever reasons you choose. The President has now sent you two unsatisfactory nominees in a row. This flaw needs to be corrected. And because the President failed to seek your advice in the Alito nomination, you are not obligated in any way to presume that this nomination is worthy of your support.
The second obvious flaw is that you have accepted the false assertion that Supreme Court nominees are somehow prevented from giving you straight answers about what they believe the law to be. It is meaningless for them to say, "I will follow the Law," or "Nobody is above the Law," without letting you know what they believe the Law to be. For instance, Judge Alito may very well believe that the anti-torture provisions you recently enacted are unconstitutional, interfering, as they do, with the magical Unitary Executive authority which he erroneously believes is possessed by the President. If he believes this, then when these cases come before him, he will rule that the President does not have to follow an unconstitutional law. You need to know this before, not after, Judge Alito becomes a member of the Court. The plain fact is that there is no legal, moral, or ethical reason why these nominees cannot tell you whatever you need to know, even if these exact cases might be coming before the Court. They are prohibited only from giving you a commitment. They are never prohibited from giving you their understanding of the applicable laws. I have previously explained all of this in my article located at
The third obvious flaw is that you seem to have accepted the idea that a "Nuclear Option" could be used to break a filibuster, by simply having the Chair falsely declare that further debate is out of order. Then, according to this false idea, the decision of the Chair could be sustained by a simple majority. And thus a Standing Rule of the Senate, which requires a two-thirds vote to amend, could be subverted by a false ruling sustained by a simple majority. The very concept is absurd on its face, as I have explained in my article located at
And any nomination confirmed by such a tainted process would surely be rejected by the Court, if challenged.
Today you begin a full and open debate on the nomination of Judge Samuel Alito to the Supreme Court of the United States, in violation of a direct order from President Bush, who had instructed you to give him a "prompt up-or-down vote," by which he meant a Rubber-Stamp approval of Judge Alito, without question or debate. Please see
If it had been possible to get the sixty votes needed to bypass debate and go straight to a vote, I'm sure he would have instructed you to do that, in order to avoid any annoying questions about his choice of Alito. But sadly for him, the votes were not there, and now you are heading into what he had hoped to avoid: a full and open debate on the suitability of Samuel Alito for this vitally-important lifetime job.
The mere fact that he felt entitled to issue this command to you should have alerted you to the fact that our President is dangerously deluded about his Constitutional role in our Government.