An "Open Mind" Gathers No Controversy

The press reports today are all about how "well" Samuel Alito handled the questions put to him yesterday. Maybe that has to do with the quality of the questions. Although this is clearly a public hearing, and is being broadcast, and therefore Senators are more inclined to bombast and pontification than to seriously questioning the witness, we are entitled to expect serious answers to questions about legal issues from the nominee.

Some of the questions yesterday centered on Youngstown v. Sawyer, and the issue of the "inherent" ("penumbral," when discussing the Roe v. Wade right to privacy; "tacit" when discussing such powers in the law, the preferred term of the late Chief Justice William Rehnquist) powers of the President. Judge Alito gave an answer that was very clearly no answer at all, leaving open the question of how he sees that issue, and how far "outside" or how much "within" the mainstream of judicial opinion he is.

The correct answer is this one, provided by Professor Lawrence Tribe:

Any such characterization would be hard to take seriously with respect to unchecked warrantless wiretapping. As the Supreme Court famously held in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), an emergency presidential takeover for a limited time of certain critical publicly held corporations like Bethlehem Steele Co. and the United States Steele Co., in order to avert the threat that would be posed to our national security by a stoppage of the steel production needed for weapons and other materials essential to the ongoing Korean War, falls outside that tiny category of congressionally illimitable executive acts and is indeed unconstitutional unless affirmatively authorized by Congress. If that is so, then certainly an unchecked presidential program of secretly recording the conversations of perhaps thousands of innocent private citizens in the United States in hopes of gathering intelligence potentially useful for the ongoing war on a global terrorist network not only falls outside that category but misses it by a mile.

The only escape from that conclusion would be to hold that inherent and illimitable presidential power to abridge individual liberty and erode personal privacy categorically exceeds presidential power to displace temporarily the corporate managers of entirely impersonal business property, without confiscating, transferring, or otherwise touching the property's ultimate ownership by the holders of its shares. But our Constitution embodies no such perverse system of priorities.

The presidential power at issue in this case is therefore subject to the control of Congress. And that Congress has indeed forbidden this exercise of power is clear. The Foreign Intelligence Surveillance Act of 1978 unambiguously limits warrantless domestic electronic surveillance, even in a congressionally declared war, to the first 15 days of that war; criminalizes any such electronic surveillance not authorized by statute; and expressly establishes FISA and two chapters of the federal criminal code, governing wiretaps for intelligence purposes and for criminal investigation, respectively, as the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." 50 U.S.C. §§ 1811, 1809, 18 U.S.C. § 2511(2)(f).

"Questions of law" are those questions upon which reasonable minds will not differ. That is not a standard which means everyone must agree upon what the law is when applied to any particular set of facts; but neither is it a standard which permits the kind of legal analysis of Presidential power which Judge Alito has committed to paper and made in speeches in the past.

Nor is it too much to ask for an analysis of a point of law from a candidate for the Supreme Court. Another legal scholar might disagree with Professor Tribe's analysis, but this is a clear, cogent analysis of the law, and leaves no ambiguity on a subject upon which there should be no ambiguity. The settled constitutional principle, after all, is that the Constitution is a check on the power of the government, not a general provision of power to be expanded upon as necessary. It is the final word on governmental authority, not the first word, and so it has been interpreted, even in Brown v. Board of Education, even in Roe v. Wade.

But that's not the answer Judge Alito gave yesterday. And that's where the arguments over law revolve today: not over how the power of government is to be checked, but over how it is to be wielded, and extended.

Alito's profession of an "open mind" is precisely this kind of reasoning: an open mind to new theories of law unsupported by Constitutional doctrine, and completely contrary to the notion of the Constitution as a check on governmental power. His "open mind" would, instead, extend the power of government in ways unknown in the history of this country under this Constitution.

N.B.--Dick Durbin understands this. As I type, he is questioning Alito about Brown v. Board of Education and Griswold v. Connecticut, the landmark cases for "judicial activism," and yet an inviolable decision (both examples of "super precedent, even "super duper precedent". While we have now tacitly accepted segregated schools again [and so we really just pay lip service to Brown], who among us would stand for a state ban on contraceptives again?) And yet Alito refuses, as Roberts did (per Durbin), to declare Roe v. Wade "the settled law of the land." There's a reason for that. He has an "open mind."