- Ill Literacy, Episode XXVII: The Enduring Tension (Guest: Donald J. Devine) - March 25, 2021
- Ill Literacy, Episode XXIV: The Crooked Path to Abolition (Guest: James Oakes) - February 3, 2021
- Ill Literacy, Episode XXII: 1620 (Guest: Peter W. Wood) - December 8, 2020
The sudden death of Supreme Court Justice Antonin Scalia immediately began discussion of who President Obama will appoint to take his place, and whether the U.S. Senate should take up the nomination in an election year. I look back at Obama’s views on Supreme Court nominees seems appropriate.
On January 26, 2006, the junior senator from Illinois took to the floor of the United States Senate to explain why he was voting “no” to confirm Samuel Alito as an associate justice on the U.S. Supreme Court.
Young Sen. Obama’s reasoning was sound in a few sections of his quick, six-minute speech. I was especially struck by this bit about restraining executive power and respecting the Constitution’s checks and balances, views an older President Obama would certainly find to be nonsense.
When it comes to how checks and balances in our system are supposed to operate, the balance of power between the executive branch, Congress, and the judiciary, Judge Alito consistently sides with the notion that a president should not be constrained by either Congressional acts, or the check of the judiciary. He believes in the over-arching power of the president to engage in whatever policies the president deems to be appropriate.
I’m glad that, as usual, Obama was wrong — even the younger version. Alito was among the five justices (including the late Scalia) who stopped Obama’s illegal Clean Power Plan because (presumably) Alito does not believe “in the over-arching power of the president to engage in whatever policies the president deems to be appropriate.”
This bit from Young Obama also made sense — even though he was wrong to worry about Alito not being inclined to ensure that the president should be “constrained by the Constitution and our laws.”
In all of these cases, we believe that the president deserves our respect as commander-in-chief, but we also want to make sure that the president is bound by the law — that he remains accountable to the people who put him there, that we respect the office, and not just the man, and that office is bounded and constrained by our Constitution and our laws. And I don’t have confidence that Judge Alito shares that vision of our Constitution.
Full transcript below the video, which I clipped from CPAN-2.
Transcript picked up after some customary pleasantries:
“… There are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether or not the justice is intellectually capable, and an all-around good guy. That once you get beyond intellect, and personal character, there should be no further question as to whether the judge should be confirmed.
“I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise AND consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I am deeply troubled.
“I have no doubt that Judge Alito has the training and qualifications necessary to serve. As has been already stated, he has received the highest rating from the ABA, he is an intelligent man, and an accomplished jurist. There’s no indication that he is not a man of fine character. But when you look at his record, when it comes to his understating of the constitution, I found that in almost every case he consistently sides on behalf of the powerful against the powerless. On behalf of a strong government or corporation against upholding Americans’ individual rights and liberties.
“If there is a case involving an employer and an employee, and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. If there is a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule or decision, then he’ll rule in favor of the state. He’s rejected countless claims of employer discrimination even refusing to give some plaintiffs a hearing for their case. He’s refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He’s overturned a jury verdict that found a company liable for being a monopoly when it had 90 percent marketshare in that industry at that time. It’s not just his decisions in individual cases that give me pause, though. It’s that decisions like these are the rule for Samuel Alito, rather than the exception.
“When it comes to how checks and balances in our system are supposed to operate, the balance of power between the executive branch, Congress, and the judiciary, Judge Alito consistently sides with the notion that a president should not be constrained by either Congressional acts, or the check of the judiciary. He believes in the over-arching power of the president to engage in whatever policies the president deems to be appropriate.
“As a consequence of this, I am extraordinary worried about how Judge Alito might approach the numerous issues that are going to arise as a consequence of the challenges we face with terrorism. There are issues like wiretapping, monitoring of emails, other privacy concerns that we have seen surface over the last several months. The Supreme Court may be called to judge as to whether a president can label an individual US citizen an enemy combatant, and thereby lock them up without the benefit of trial or due process. There may be considerations with respect to how the president can prosecute the war in Iraq, and issues related to torture.
“In all of these cases, we believe that the president deserves our respect as commander-in-chief, but we also want to make sure that the president is bound by the law — that he remains accountable to the people who put him there, that we respect the office, and not just the man, and that office is bounded and constrained by our Constitution and our laws. And I don’t have confidence that Judge Alito shares that vision of our Constitution.
“In sum, I’ve seen an extraordinarily consistent attitude on the part of Judge Alito that does not, I believe, uphold the traditional role of the Supreme Court as a bastion of equality and justice for United State citizens. Should he be confirmed, I hope that he proves me wrong. I hope that he shows the independence that I think is absolutely necessary in order for us to protect and preserve our liberties and our freedoms as citizens. But at this juncture, based on a careful review of his record, I do not have that confidence, and for that reason I will vote no and would urge my colleagues to vote no on this confirmation.”