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FUMARE

Law, culture, and Catholicism...up in smoke!

Thursday, February 02, 2006

Why Carl Levin Voted No on Alito

Michigan Senator Carl Levin (D) offers an explanation for his "no" vote on Judge Samuel Alito:

Like Judge Roberts before him, Judge Alito has an impressive background and command of the law. He easily meets the educational and professional requirements of the position. Judge Alito has worked for the Justice Department, as the U.S. Attorney for the District of New Jersey, and for nearly 16 years as a Judge on the Third Circuit Court of Appeals. He is respected by his peers as a very decent person and is a person of high calibre and integrity.

Wait a minute, Senator Levin. I thought you were going to tell us why you voted "no" on Judge Alito. So far, it sounds like he's incredibly qualified for the job.

That Judge Alito has a keen intellect and understands the nuances of the law is indisputable.

I sense a "but" coming here . . .

But that is not enough to warrant confirmation if his discernable views on key issues are in variance with fundamental principles of our constitutional system. Because I am not convinced that he will adequately protect the constitutional checks and balances that are the bedrock of our liberty, I cannot support his confirmation.

Please tell us more, Senator Levin, and continue to speak from the heart. Your appeal to "constitutional checks and balances" nearly has me in tears.

I have concerns about Judge Alito’'s views in a number of areas, but the one in which I have the greatest doubts relates to his undue deference to executive power. In recent years, constitutional issues on the authority of the executive branch have multiplied. These include executive actions in areas of government eavesdropping, other government intrusions on personal privacy including library records, medical records, and Internet search records, and the detention and treatment of American citizens whom the President designates as "“enemy combatants."” Our system of checks and balances requires the Supreme Court to enforce limits on executive power, and the nominee'’s views on executive authority under the Constitution are extremely important.

So Senator Levin, in other words, you are not concerned that Justice Alito will not interpret the Constitution in good faith using the extraordinary judicial skills he has developed over the last fifteen years on the bench. Instead, you are worried that Justice Alito will interpret the Constitution and reach a result you don't agree with. Did I get that right?

Judge Alito's record, however, is one of undue deference to executive power, and raises significant doubts as to whether he would adequately apply the checks and balances that the Founders enshrined in the Constitution to protect, in part, against an over-reaching executive.

Yes. I think I did get that right. You're concern is that Justice Alito will come to different conclusions regarding certain provisions of the Constitution than you would.

Hmm. . . That's interesting. If you won't vote in favor of Justice Alito because you have concerns as to the outcomes of his rulings, then I guess it was wrong of all those Republicans to vote to confirm President Clinton's nominees Justices Breyer and Ginsburg.

Let's skip ahead and read some more of your explanation as to why you voted "no" on Alito.

Though he has been hesitant to check presidential power, Judge Alito has been more than willing to check congressional power. In United States v. Rybar, the Third Circuit upheld a conviction under the federal law prohibiting the possession of machine guns. In his dissent, Judge Alito said there was insufficient evidence in the record to determine that Congress had the power under the Commerce Clause to enact the legislation.

But was Judge Alito's view wrong?

Not only did the majority strongly criticize his view of congressional power, and not only did the Supreme Court decline to review the majority'’s ruling, thereby suggesting that the majority'’s view was the correct one, but the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits have also all found the congressional machine gun ban to be constitutional.


Again I ask, but was Judge Alito's view wrong? And is it any surprise that the Supreme Court declined to review the Third Circuit's ruling? The Supreme Court only has three reliable conservative/originalist votes. That's why President Bush campaigned to nominate Judges in the mold of Scalia and Thomas. If voters didn't want Justices like Scalia and Thomas, they could have voted for the French-looking candidate and received Justices in the mold of Ginsburg and Breyer.

I'll leave you with Senator Levin's conclusion, where he once again makes it clear that his vote against Judge Alito is purely because he suspects that Judge Alito will reach different outcomes than Senator Levin would.

Judge Alito is a personable, decent man, a man of great integrity and extraordinary intellect. His associates vouch for his collegiality and his congeniality. But I am not confident that Judge Alito will help provide the essential check on executive excess that has proven throughout our history to be the bedrock of our liberty. During his hearings, he stated time and time again that the President is “not above the law,” but in the end I am not persuaded that there'’s real conviction behind that mantra.

I wish I could ignore my fears and vote my hopes. But the doubts are too nagging and the stakes are too high for me to consent to Judge Alito's nomination to the Supreme Court.

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