Executive Assistant

Alito flunks the most pressing test of today and tomorrow.

The year is 2009. President Hillary Clinton introduces a nationalized healthcare package, which she assembled after conducting a dozen secret meetings in the White House with George Soros, Big Labor, and unknown representatives from industry groups who stand to make a bundle. Judicial Watch files a Freedom of Information Act lawsuit for the minutes of the meetings. Clinton refuses, citing her Executive Privilege to hold private and confidential conversations about most anything she chooses. The case goes to the Supreme Court.

How would Samuel Alito vote?

President Al Gore, in a major speech on "the terrorism of child pornography," orders the Attorney General to use "all the same tools of the War on Terror" in the new crackdown against online smut-peddlers. Soon after, American citizen Jose Blow is detained on "suspicion of planning a snuff film," and is held indefinitely, without charge, and without access to a lawyer. President Gore says Blow will be detained until authorities can extract all possible "information about the kiddie-porn ring." The ACLU files a challenge.

How would Alito vote?

A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team's in charge. Because some other team will be in charge some day, and they will find their own unique opportunities to abuse whatever power they inherit.

George Bush and Dick Cheney have been very deliberately accumulating and building power in the executive branch since taking the oath of office. On just his 10th day in office, Bush let us know that "I am mindful not only of preserving executive powers for myself, but for predecessors as well."

The remark was played up as a comical Bushism—somewhat inaccurately, since he was justifying the decision not to reverse one of Bill Clinton's pardons. But as we've come to learn, it was a dead-sober glimpse into the core Bush/Cheney governing philosophy of rolling back what the veep recently described as the "erosion of presidential power and authority … at the end of the Nixon administration."

Those Cheney comments, naturally enough, came amidst his first full-throated defense of the administration's secret wiretapping of American citizens without a warrant. "All of a sudden there is, you know, a lot of stirring around, shall we say, about our authority to operate in those areas," he snapped. "Either we're serious about fighting the war on terror or we're not." Later in that same interview Cheney questioned the constitutionality of the War Powers Act, and warned that "It will be tested at some point."

Even if you agree with the administration's conduct in the War on Terror—down to the pre-pubescent notion that any crime-fighting policy, let alone the possibly illegal surveillance of Americans, can be assessed using the up-or-down scale of whether "we're serious about fighting the war on terror"—imagine those expanded powers in the hands of, say, John Kerry. Or John McCain.

If you took a step back and looked at the comparative balances of power within the U.S. government over the last century, the single greatest change that would jump out at you would be the transfer of power to the White House, starting with FDR and accelerating to this day. The CIA and NSA (not to mention the Departments of Energy and Homeland Security) didn't even exist before World War II, let alone enjoy budgets whose very size remains a state secret.

Couple this concentration of power with America's post-1991 emergence as the world's sole superpower, one whose irritability with the world grows in direct proportion to its assumption of responsibility for the world's affairs, and you can easily arrive at the defining issue for the Roberts-Alito Supreme Court: What, if any, constitutional constraints will be placed on this or future presidents who wish to enforce laws and conduct foreign policy without second-guessing from the Congress, the judiciary, or the public?

Alito's pre-judge history of defending domestic wiretaps and advocating presidential signing statements suggests deference to the executive. His judicial record of not rejecting strip-searches on 10-year-olds and giving law enforcement the benefit of the doubt reinforces that impression. But what of his answers last week?

Though Alito did stress repeatedly that the president was not above the law (what else was he going to say?), and paid repeated tribute to Justice Robert Jackson's landmark 1952 decision blocking Harry Truman's war-time seizure of steel mills, the deal-breaker for me was this mealy-mouthed response to Sen. Russ Feingold (D-Wisc.), who is consistently one of the only members of the Judiciary Committee to approach nomination hearings with the seriousness they warrant:

SEN. FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute. Is that correct?

JUDGE ALITO: Well, I don't want to—I don't—I want to be very precise on this. What I have said—and I don't think I can go further than to say this—is that that situation seems to be exactly what is to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do is explicitly—has been explicitly disapproved by Congress. So his own taxonomy contemplates the possibility that—he says that there—this—there is this category, and cases can fall in this category, and he seems to contemplate the possibility that that might be justified.

But I'm not—I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in a way I would consider any legal question. I don't think I can go beyond that.

I don't feel comfortable with a Supreme Court unclear on the notion of whether the president can legally break the law; the existence of such a deferential bench is a standing invitation for Bush and his successors to do just that.

Today these crimes will be justified in the name of being "serious about fighting the war"; tomorrow they will be justified in the name of being "serious about protecting our children." Which is why yesterday is almost too late to finally begin showing some seriousness about protecting the constitutional liberties that neither of the major political parties respect when they hold the keys to the White House.