Tuesday, January 17, 2006

To speak of many things

Well, this is disturbing.

There's a certain amount of hyperbole involved in Mr. Brant's musings ("President Jeb Bush....President Condoleeza Rice"), but the thrust seems sound, and echoes something I have been consideringm in connection with the continuing attempts to define the Abramoff scandal.

The GOP currently controls the executive, the legislative, and, effectively, the judicial branches of government. However, what it does not control, as U.S. Attorney Patrick Fitzgerald and Judge Michael Luttig, and today the Supreme Court, have shown, is the Law.

I think they would like to remedy that. And they see Sam Alito as the key to that remedy.

If Alito's more bizarre notions of Presidential power could be made law by ruling of the Supreme Court, then Alito's aversions during the hearings that the President is "not above the law" would remain true, but be completely pointless. Because, per Judge Alito's writings, the President is the law. Signing statements and extraordinary powers where the court "lacks expertise" (and that is a basis upon which the court declines to intrude on such issues as the declaring of enemy combatants in wartime) would become code-words for: the President cannot violate the law, because the President determines the law.

Remember, the Court has to defer to the Executive branch to no small degree, as that is the branch which carries out court orders, right down to the bailiff in the courtroom. The degree of deference, however, should never include subjugation. But that could be, effectively, Judge Alito's position. And if the Executive, which is the military and the police power of the government, decides it is also legislature and judiciary, then we have a Constitutional crisis even a child can understand.

There are clues to the way the court is leaning on this issue, in the opinion in Gonzales v. Oregon handed down today.

In his opinion on Tuesday, Gonzales v. Oregon, No. 04-623, Justice Kennedy emphasized, with evident disapproval, the unilateral nature of Mr. Ashcroft's action, taken "without consulting Oregon or apparently anyone outside his department." The attorney general's rule was not entitled to the deference the court usually gave to interpretations of governing statutes by executive branch officials, he said, because Congress had not given the attorney general the authority he was invoking.

"The authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design," Justice Kennedy said.
The short version: the DOJ cannot read into the statute powers that are not there, and the attorney general lacks the power to declare criminal what the Congress did not declare criminal. Substitute "Executive" for attorney general there, and "legislature" for Congress, and you begin to see the drift of the Court.
In his opinion, Justice Kennedy said that Mr. Ashcroft was claiming the "extraordinary authority" to declare as criminal actions that Congress had not designated as crimes, and that he was seeking "a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality."

But Congress had no such intent in passing the Controlled Substances Act, Justice Kennedy said. "The structure and operation of the C.S.A. presume and rely upon a functioning medical profession regulated under the states' police powers," he said, adding that "Oregon's regime is an example of the state regulation of medical practice that the C.S.A. presupposes."
Not also the vote was 6-3, with Roberts joining the dissent of Scalia and Thomas. Is there any doubt that vote could easily have been 5-4 with Alito on the bench?

There is another reason to be disturbed by Alito's nomination; a reason just as valid, but much harder to quantify. The counter-argument usually runs like this (from a comment earlier this week at Eschaton):

If judges start making legal exceptions because we don't like the fact that a law or legal principle leads to strip-searching 10 year-olds or [insert objectionable outcome here], then we stop having notice of what the law actually is--we only find it out after we've acted when a judge lets us know what comports with his definition of this amorphous, unwritten goal of "justice".
If the law were that simplistic and mechanical without the intervention of judges, we'd have done away with them years ago.

There are questions of justice involved in any case before a court, issues of equity (a recognized arena of law and of jurisprudence and, yes, judgment), and judges are expected to be women and men of judgment, perception, wisdom, and insight. We prefer people with experience in both life and law on the bench, not because they finally learn all the applicable law and its preferred application with a few years experience, but because they have experienced life. If judgment weren't required, if wisdom weren't needed, we would simply send our top law school graduates from commencement straight to the bench and be done with the matter.

One of the worst problems with the Supreme Court is how isolating it is. Many years ago the Court decided lawyers (and, by extension, other professionals) could legally advertise, despite professional ethics rules that banned the practice. The Court truly imagined that "ambulance chasers" would not take to the airwaves like so many rabid dogs.

And the Justices were shocked at what they unleashed. Just as many were over the reaction to Bush v. Gore, another case where the "law" (well, even the law wasn't applied there) should have yielded to a great deal more wisdom

Our best legal opinions (Holmes, Learned Hand, Cardozo) reflect not just a trained legal mind, but a wise human mind. That is what we honor.

Alito is the closest thing to a legal computer I've yet seen. Anxious to avoid any of the mistakes Bork made by being honest, the stripped himself of all humanity. He argued to the Committee that the majority opinion in the "strip search" case he dissented from would mean that drug dealers would simply use 10 year old girls as "mules," and that was his concern in his dissent. The issue, of course, was the reach of the warrant, a reach he would have gladly extended with no thought to the human consequences under that set of facts.

That's not legal wisdom. It's human blindness. The same blindness which may lead him to willingly and blandly turn over as much governmental power to one man, as that one man is willing to take on.

Brant mentions the internment of the Japanese in World War II. Some think Earl Warren sought to atone for his responsibility for that illegal and unconstitutional act, with the Brown v. Board of Education ruling, and several other landmark rulings which severely restricted the power and reach of government, at all levels. Alito, on the other hand, along with Thomas and Scalia and Robertson, seems to think the government cannot have too much power, as long as it is the "right kind" of power. (Scalia's dissent rests on the repugnance of suicide, not on the law.) Will the Supreme Court save us from the man elected to office? That may well depend on who is on the Supreme Court when the case is presented.

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