The Alito nomination comes in the midst of a deepening constitutional crisis. In the aftermath of the 9-11 attacks, the President has claimed extraordinary powers to imprison Americans outside the reach of the judicial system, to engage in warrantless surveillance of American citizens, and to employ highly coercive interrogation methods against foreign captives and deliver them to third countries where they will be subject to torture, all in contravention of US and international laws.
For the most part, Congress has stood on the sidelines as its constitutional authority has been usurped. Yet even when the House and Senate enacted an amendment by Senator McCain to prohibit prisoner abuses, the President baldly asserted the right to violate the prohibition if he so chooses.
In such situations, it falls to the Supreme Court to restore the constitutional checks and balances that safeguard our liberties. In 1952, the Court rebuked President Truman for his claim of inherent power to seize the nation's steel mills during the Korean conflict. And in the 2004 case brought by an American citizen whom the President had labeled an "enemy combatant," Justice O'Connor declared for a plurality of the Court that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Now the President proposes to replace Justice O'Connor with a judge whose lengthy record as a judge and a government attorney demonstrates a strong and consistent tendency to defer to presidential authority. Indeed, during his years in the Reagan Justice Department, Judge Alito was among the architects of the very arguments which President Bush is now using to advance his claims of virtually unchecked executive power.
We had hoped that Judge Alito's confirmation hearings would allay these concerns. Instead, he declined numerous opportunities to modify or clarify his views, offering little more than platitudes affirming that the President must follow the Constitution and is not above the law.
Nor was Judge Alito more forthcoming on other critical issues on which the senators urgently sought clarification of his views. He acknowledged that there is a constitutional right to privacy, yet declined to explain the scope or content of that right. In particular, he evaded repeated requests to explain forthrightly whether he believes that the Constitution protects such fundamental rights as a woman's decision to terminate her pregnancy. All he would say about Roe v. Wade, which he has sought throughout his career to weaken or overturn, was that the decision is a precedent deserving of respect. Given his prior denunciations of the decision, his claim that he has an "open mind" on the subject was uncomfortably reminiscent of the similar assurance given by Clarence Thomas, who promptly voted to overturn Roe once he was on the Court.
Judge Alito was equally unable to explain away his restrictive view of the scope of congressional power to protect the health and well-being of the American people and his consistent efforts to weaken enforcement of federal civil rights, environmental, family leave, and gun control laws that serve those ends.
All of these are subjects on which Justice O'Connor, a pragmatic, mainstream conservative, has played a pivotal and stabilizing role. We believe that Judge Alito, if confirmed, would pursue a radically different path, bringing about a profound shift in the ideological balance of the Court. The Senate should reject his nomination.