If confirmed, Alito would join at least three other right-wing justices John Roberts, Antonin Scalia and Clarence Thomas who believe that George W. Bush should possess near total control of the U.S. government during the ill-defined War on Terror. If Anthony Kennedy, another Republican, joins them, they would wield a majority.
Alitos theory of the unitary executive holds that Bush can cite his plenary or unlimited powers as Commander in Chief to ignore laws he doesnt like, spy on citizens without warrants, imprison citizens without charges, authorize torture, order assassinations, and invade other countries at his own discretion.
Can it be true that any President really has such powers under our Constitution? asked former Vice President Al Gore in a Jan. 16 speech. If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?
Under this government envisioned by Alito and Bush, Americans would no longer have freedoms based on the Constitution and the law, but on Bushs tolerance and charity. Americans would, in essence, become Bushs subjects dependent on his good graces, rather than citizens possessing inalienable rights. He would be a modern-day king.
A meeting of the Democratic caucus on Jan. 18 to discuss Alito drew only about two dozen senators out of a total of 45. The caucus consensus reportedly was to cast a strategic or a symbolic vote against Alito so they could say we-told-you-so when he makes bad rulings in the future. [See NYT, Jan.19, 2006]
But its unclear why voters would want to reward Democrats for making only a meaningless gesture against Alito, rather than fighting hard to keep him off the court. An extended battle also would give them a chance to make their case about why they see Alito as a threat to the U.S. Constitution.
A filibuster could give voters time, too, to learn what Alito and Bush have in mind for the country under the theory of the unitary executive. If after a tough fight the Democrats lose, they could then say they did their best and the voters would know what was at stake.
Losing, however, might not be the end result. A swing in public opinion is certainly possible if even one senator takes the floor to wage an old-fashioned, Mr. Smith Goes to Washington filibuster in defense of the most fundamental principles of the American democratic experiment.
A filibuster could touch a public nerve if it concentrates on protecting the Founding Fathers framework of checks and balances, the Bill of Rights, and the rule of law all designed specifically to prevent an abusive Executive from gaining dictatorial powers.
Rallying the Nation
If an elder statesman, like Robert Byrd, or a younger senator, like Russell Feingold, started speaking with a determination not to leave until Bush withdraws the Alito nomination, the filibuster could be a riveting moment in modern American politics, a last line of defense for the Republic.