TheAgitator.com
About Them Judges
Wednesday, May 7th, 2008John McCain is promising more John Roberts and Sam Alitos on the Supreme Court if he’s elected president. Cato’s Ilya Shapiro weirdly thinks this is a reason for libertarians to vote for McCain.
Here’s George Washington University con law Professor Johnathan Turley on Alito:
Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government…
…In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.
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As an assistant solicitor general, Alito strongly opposed the ruling of a court of appeals in the seminal case of Garner v. Tennessee. In that case, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered, a position ultimately rejected by six members of the Supreme Court and decades of later decisions.
Likewise, Alito authored another memo that argued strongly in favor of giving immunity to officials who violate the rights of citizens — a position long rejected by the federal courts.
As he did as a Reagan administration attorney, Judge Alito often adopts standards so low that any government excuse can overcome any government abuse.
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An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government’s most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.
The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.
As for Roberts, in his book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Boston Globe reporter Charlie Savage devotes seven pages to Roberts’ career of defending government power (particularly presidential power).
Roberts, from the beginning of his legal career and straight through to the Hamdan decision, had demonstrated his unwavering commitment to expand presidential power.
These aren’t libertarian judges. They’re judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president’s powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn’t an exaggeration.
Roberts and Alito also both voted the wrong way in Hudson vs. Michigan, the no-knock raid case. Not only that, but Alito’s vote proved to be the tiebreaker. Had Sandra Day O’Connor not retired, it’s likely that Hudson would have gone the other way.
Bush (or more likely Cheney) chose Roberts and Alito for one very specific reason: Both have proven throughout their careers to be reliable defenders of presidential power.
More judges like Alito and Roberts is the last reason a libertarian should vote for John McCain.
Radley,
I certainly agree with your concerns about Roberts and Alito. However, I think your description of the “unitary executive” is incorrect, and the mistake you make is a common one. As I understand it, the idea is NOT that the president’s powers over military and security issues are unlimited and uncheckable. Instead, it’s that only the executive branch can and should have the responsibility for the execution of the laws, hence Congress cannot create agencies to execute laws that the President, as head of the executive branch, has no ability to control. The point is that the “executive” function should be unified/unitary under the President, NOT that the executive branch trumps all others.
Wikipedia’s summary:
“In American political and legal discourse, the unitary executive theory is a theory or doctrine of Constitutional interpretation that holds it is unconstitutional for Congress to create “independent” agencies, authorities, or other entities that exercise executive, and sometimes quasi-legislative or quasi-judicial, powers, governed by officials the President may be authorized to nominate, perhaps with the advice and consent of Congress, but he is not authorized to remove or discipline. It stems from an interpretation of the separation of powers and of Article II of the U.S. Constitution, that only the President is vested with the power to execute the laws in the executive branch.”
The idea may be a bad one, but your description, like that of many other critics, isn’t quite accurate.
Steven,
It’s true that older concepts of the Unitary Executive were more about objecting to inter-branch agencies and attempts to usurp the executive’s ability to enforce the law.
But if you read the memos from John Yoo, David Addington & co. over the last seven years, they’re arguing for a concept of the Unitary Executive that’s much more broad and immune to checks and balances. This goes way beyond, for example, objections to the Independent Counsel law. Yoo and Addington argue not only that the executive is in charge of executing the laws, they argue that in matters of foreign policy and national defense, the president isn’t obligated to follow any laws that Congress passes that limit his powers in those areas.
Such is why Bush signed the torture bill and PATRIOT Act reauthorization into law, but then issued a signing statement that essentially said he had no plans to abide by either law. Even guys like Dick Thornburgh–who supported Unitary Executive Theory as attorney general during the George H.W. Bush administration–have expressed concern about this new push (supported, incidentally, by both Roberts and Alito).
I really recommend Savage’s book. He’s not your typical liberal media elite. The book was endorsed by people like George Will, Richard Epstein, and Mickey Edwards (former head of the American Conservative Union).
Well said, Radley. I must say, ever since you left Cato, the place has gone down hill!
The supreme court is probably the biggest reason why I would never vote for McCain. I really don’t see any pressure to reduce the federal government’s size or unconstitutional powers coming from the court, so the best we can hope for is a court that will be good on civil liberties and hopefully push back a bit against these assertions of presidential power.
A few weeks ago, Ilya was lamenting the “extreme judicial activism” (paraphrase) of the Roe v. Wade decision. Ilya sounds more and more like a straight conservative–what is he doing at Cato?
“Judicial activism” in most cases really means “giving rights to people we don’t think should have them.” So, you know, if Alito and Roberts represent the opposite approach, this isn’t too surprising.
There are a bunch of “straight conservatives” who work at Cato (by this I mean people who favor pro-market economic reforms but also government that actively promotes “social order” and traditional morality both at home and abroad). In some areas of public policy, the interests of libertarians and conservatives overlap, so you don’t see a clear conflict. In other areas, they don’t.
[...] everybody has the same point of view and McCain’s attitudes on federal [...]
I don’t know much about the Supreme Court, but I would guess that the most likely nominees are not going to be those who oppose expanded power for those who do the nominating.
JT, care to elaborate on the conservatives at Cato (i.e. list some of them)? I don’t mean this in a snide way, I’m honestly curious. I’m fairly familiar with the work Cato puts out, but I haven’t noticed all that much “conservative stuff” (e.g. railing for state imposed morality).
[...] while the “conservative” position was simply supine — respective positions that extend to each side’s views of criminal justice in general. Similarly, in Lawrence, and for that matter, in all the cases [...]