We are witnessing a rare event. The Supreme Court confirmation hearing of Sam Alito will test the very core of our country. Our republic is at stake. And I am very afraid that only a handful of people even realize it.
Usually, the Supreme Court confirmation process revolves around a carefully choreographed dance on abortion. The right bobs, the left jabs. The left Roes, the right throes. The right hides, the left chides. The left hunts, the right punts.
The Republicans claim the lives of millions of children are at stake if Roe isn't overturned -- but they promise their candidate won't overturn it. Somehow that makes sense to people. I'm often amazed by what nonsense passes for rational discourse in this country.
The Democrats claim they care about judicial temperament and pubic hairs in Coke cans, when all they really care about is whether you are going to overturn Roe. They ask earnest questions about judicial philosophy, when all they want is for the candidate to say they will uphold the right to an abortion -- whether they will or not -- so they could go back to their constituents and say they tried.
But this time it's not about Roe!
First, to dispense with the abortion issue, let me tell you something everyone knows - Alito will vote to overturn Roe. This is what Alito wrote earlier in his career: "I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that ... the Constitution does not protect a right to an abortion."
If you believe the man who wrote that will vote to uphold Roe, your powers of self-delusion are nearly limitless.
But I don't care. Because there's a much bigger fish in these waters. Roe is about one right, but Alito isn't going after just one right. He's going for "the whole thing."
The real constitutional issue to be decided in these hearings is the power of the executive.
Sam Alito believes the executive has the power to ignore laws he does not agree with. That is not an exaggeration. I wish it were. President Bush also believes this - actually President Bush couldn't tell you what the "unitary executive theory" is on a bet, not even if you promised him a shiny new bike for his birthday - much more importantly, Vice President Cheney also believes in this theory.
The President has cited his unitary executive power 95 times in bills he has signed. If I tell you what the implications of this theory are, you wouldn't believe me. If I told you it allows the President to circumvent every law passed by Congress, you would say I'm a crazy liberal (until five years ago I called myself a conservative, I think it is so sad that conservatives now consider defending the constitution a sign of weakness). If I told you the President has already used it to violate three different federal statutes, you'd say that couldn't be true.
So, I won't tell you, I'll let the Wall Street Journal tell you. Read this article and see if you agree with the philosophy. Didn't we defeat a King George to make sure the executive didn't have complete, unchecked power? It looks like we're going to have to do it again.
There is a lot of discussion on television these days about politicians or judicial candidates being within the mainstream or not. Well, there could be nothing more outside the mainstream than the President's use of the unitary executive theory.
Will someone please do a poll of constitutional law professors in the country? I bet you couldn't get ten percent to buy into this theory. I have never seen, heard or read a legal expert who wasn't a member of the Federalist Society defend this theory. This is some harebrained concoction dreamt by a bunch of legal extremists that Dick Cheney has grasped on to make a claim for more power. But what is really scary is that one of these extremists might soon become a Supreme Court justice.
On this alone, Sam Alito must be stopped. This isn't your garden variety every day Supreme Court confirmation hearings. Some specific right isn't at stake here, the whole system is at stake. I'm just afraid that the public hasn't even been made aware of it. And this ship is going to pass in the night while a still, cold iceberg waits ahead.
We think American democracy is untouchable. It couldn't possibly be in jeopardy. This is America. We couldn't possibly have an unaccountable leader that is above the law. We are the greatest democracy ever built.
I'm given to understand that there was a ship called the Titanic which couldn't sink, until ...