If confirmed, Alito would join at least three other
right-wing justices – John Roberts, Antonin Scalia and Clarence Thomas –
who believe that George W. Bush should possess near total control of the
U.S. government during the ill-defined War on Terror. If Anthony
Kennedy, another Republican, joins them, they would wield a majority.
Alito’s theory of the “unitary
executive” holds that Bush can cite his “plenary” – or unlimited –
powers as Commander in Chief to ignore laws he doesn’t like, spy on
citizens without warrants, imprison citizens without charges, authorize
torture, order assassinations, and invade other countries at his own
“Can it be true that any President really has such
powers under our Constitution?” asked former Vice President Al Gore in a
speech. “If the answer is ‘yes,’ then under the theory by which
these acts are committed, are there any acts that can on their face be
The answer to Gore’s final rhetorical question
would seem to be no, there is nothing prohibited to Bush. The “unitary
executive” can assert authoritarian – even dictatorial – powers for the
Under this government envisioned by Alito and Bush,
Americans would no longer have freedoms based on the Constitution and
the law, but on Bush’s tolerance and charity. Americans would, in
essence, become Bush’s subjects dependent on his good graces, rather
than citizens possessing inalienable rights. He would be a modern-day
In the face of such an unprecedented power grab,
Americans might expect senators from both parties to filibuster Alito
and resist Bush’s consolidation of power. But Republicans seem more
interested in proving their loyalty to Bush, and Democrats so far are
signaling only a token fight for fear of suffering political reprisals.
A meeting of the Democratic caucus on Jan. 18 to
discuss Alito drew only about two dozen senators out of a total of 45.
The caucus consensus reportedly was to cast a “strategic” – or a
symbolic – vote against Alito so they could say “we-told-you-so” when he
makes bad rulings in the future. [See NYT, Jan.19, 2006]
But it’s unclear why voters would want to reward
Democrats for making only a meaningless gesture against Alito, rather
than fighting hard to keep him off the court. An extended battle also
would give them a chance to make their case about why they see Alito as
a threat to the U.S. Constitution.
A filibuster could give voters time, too, to learn
what Alito and Bush have in mind for the country under the theory of the
“unitary executive.” If after a tough fight the Democrats lose, they
could then say they did their best and the voters would know what was at
Losing, however, might not be the end result. A
swing in public opinion is certainly possible if even one senator takes
the floor to wage an old-fashioned, “Mr. Smith Goes to Washington”
filibuster in defense of the most fundamental principles of the American
A filibuster could touch a public nerve if it
concentrates on protecting the Founding Fathers’ framework of checks and
balances, the Bill of Rights, and the rule of law – all designed
specifically to prevent an abusive Executive from gaining dictatorial
Secondarily, the filibuster could explain to the
American people the need for courage in the face of danger, especially
at a time when some political leaders are exploiting fear to stampede
the public into trading freedom for security.
Rallying the Nation
If an elder statesman, like Robert Byrd, or a
younger senator, like Russell Feingold, started speaking with a
determination not to leave until Bush withdraws the Alito nomination,
the filibuster could be a riveting moment in modern American politics, a
last line of defense for the Republic.
In effect, the filibustering senators would be
saying that the future of democracy is worth an all-out congressional
battle – and that Alito’s theory of a “unitary executive” is an
“extraordinary circumstance” deserving of a filibuster.
A filibuster also could force other senators to
face up to the threat now emanating from an all-powerful Executive.
Democrats would have to decide if they’re willing
to stand up to the pressure that Bush and his many allies would surely
bring down on them. Republicans would have to choose between loyalty to
the President and to the nation’s founding principles.
For some senators, the choice might define how they
are remembered in U.S. history.
Republican John McCain, whose law against torture
was approved in December but was essentially eviscerated when Bush
pronounced that it would not be binding on him, would have the
opportunity to either demand that the torture ban means something or
accept Bush’s repudiation of its requirements.
Democrats who think they have the makings of a
national leader – the likes of John Kerry, Hillary Clinton and Joseph
Biden – could either demonstrate a toughness for meaningful political
battles or confirm their reputations for ineffectual gestures.
The American people also would have a chance to
rise to the occasion, showing that they are not the frightened sheep as
some critics say, but truly care about democracy as a treasured
principle of governance, not just a pleasing word of
An Alito filibuster could be a galvanizing moment
for today’s generation like the Army-McCarthy hearings were in the 1950s
when red-baiting Sen. Joseph McCarthy finally went too far and was
recognized as a dangerous demagogue.
On the other hand, there are reasons to suspect
that the Senate will recoil from a battle of such constitutional
Democratic consultants already are saying that the
Senate Democrats should finesse the Alito confirmation – letting it
proceed without a big fight – and then focus instead on corruption as an
issue with more “traction.”
This advice parallels the party’s strategy in 2002
when Democratic consultants urged congressional leaders to give Bush
what he wanted in terms of authority to invade Iraq so the debate could
be refocused on the Democrats’ domestic agenda. That approach turned out
to be disastrous, both on Election Day and in the Iraq invasion that
Nevertheless, a similar approach was pressed on
Democratic presidential nominee Kerry in 2004. The goal was to
neutralize the national security issue by citing Kerry’s Vietnam War
record and then shifting the campaign to domestic issues.
So, instead of hammering Bush on his recklessness
in the Iraq War, Kerry softened his tone in the days before the
election, turned to domestic issues, and failed to nail down a clear
victory, allowing Bush to slip back in by claiming the pivotal state of
The strategists are back to the same thinking now,
urging Democratic leaders to withdraw from a battle over Alito and to
keep their heads down over what to do in Iraq, so they can supposedly
gain some ground on the corruption issue.
There is, however, no guarantee that corruption
will trump national security in November 2006 anymore than domestic
issues did in 2002 and 2004.
Even if the Democrats do filibuster, they could
still botch it by muddying the waters with appeals about abortion
rights. A longstanding Democratic Party tendency is to pander to liberal
interest groups even when doing so will hurt the overall cause.
As strongly as many people feel about Roe v. Wade,
it would detract from what is of even greater importance in the Alito
confirmation, that he would help consolidate the precedent of an
American strongman Executive with virtually no limits on his powers.
A disciplined filibuster focused on protecting the
Constitution and the Bill of Rights would have a chance of attracting
traditional conservatives as well as moderates and liberals in a cause
larger than any political grouping.
Indeed, the filibuster could be the start of a
grand coalition built around what many Americans hold as dear as life
itself, the principles of a democratic Republic where no man is above
the law, where no man is king.