By Pokey Anderson on 1/22/2006, 12:01pm PT  

Compiled and Guest Blogged for The BRAD BLOG by Pokey Anderson, co-host of "The Monitor", a weekly news and analysis show at KPFT Radio in Houston.

EDITOR'S NOTE: Too late to filibuster Alito? Not if what Senator Dick Durbin says is true.

As we have previously opined, Democrats will be making a huge mistake by voting "NO", but failing to back up their "convictions" with a filibuster. Such an action would be both a political mistake, which their base will not likely forget, especially in the upcoming mid-terms, as well as a mistake for the good of the country, which will pay the price for such a lack of backbone for decades to come.

In her first BRAD BLOG Guest Blog, Pokey Anderson lends the Dems a hand, by helping them build their case...

ALITO'S EXTREME VIEWS ARE OUT OF STEP WITH AMERICANS
Samuel Alito, if confirmed, could serve on the US Supreme Court for the rest of your life. At age 55, his life expectancy from now is an additional 28 years or, in other words, the equivalent of 7 presidential terms. Instead of occupying a centrist position, like Sandra Day O'Connor, he would move the court far to the right.

Justice Sandra Day O'Connor "provided the swing vote 77 percent of the time. If confirmed, Alito would tip the high court's delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents."
-- Marjorie Cohn, "Alito Sounds Death Knell for Individual Rights", t r u t h o u t, January 10, 2006

With Judge Samuel Alito, the Senate Judiciary Committee faces its most consequential Supreme Court confirmation hearing in a generation. Not since Robert Bork has the Senate encountered a nominee whose long record and fully articulated views so consistently challenge decades of progress on privacy, civil rights and control of corporations. And never in memory has a single nomination so threatened to redirect the Court as Alito's. [His] fifteen years of rulings ... demonstrates that Alito is at odds with the interests of ordinary Americans.
-- "The Case Against Alito", The Nation, editorial | posted January 5, 2006

Constitutional scholar Laurence Tribe, in Senate Judiciary Committee testimony, places Alito to the right of Justice Roberts, and between Scalia and Clarence Thomas.
-- New York Times, January 12, 2006

"After a careful study, University of Chicago law professor Cass Sunstein described Alito's record of appeals court dissents as 'stunning. Ninety-one percent of Alito's dissents take positions more conservative than his colleagues...including colleagues appointed by Presidents Bush and Reagan.'"
-- "The Case Against Alito" The Nation, editorial | posted January 5, 2006

"The debate over Judge Alito is generally presented as one between Republicans and Democrats. But his testimony should trouble moderate Republicans, especially those who favor abortion rights or are concerned about presidential excesses."
-- "Judge Alito, in His Own Words", NY Times Lead Editorial: January 12, 2006

WHAT IF ALITO IS DEFEATED? WON'T THERE JUST BE A WORSE NOMINEE?
"The White House is banking on fear that if this second nominee goes down, Bush will nominate someone even worse. This argument ignores history: When in 1969-70 President Nixon nominated and lost both Clement Haynsworth and Harrold Carswell, the result was not "someone worse" but the pragmatic, humane Judge Harry Blackmun, who later wrote Roe v. Wade; when Bork was Borked, his replacement was Anthony Kennedy, who in 1992 joined fellow Reagan nominee O'Connor to reaffirm Roe. Alito defeatism also ignores today's political climate: As the midterm elections draw closer, as the Iraq War scandals deepen, Senate Republicans are falling over one another to distance themselves from the Administration and the far right."
-- "The Case Against Alito" The Nation, editorial | posted January 5, 2006

ISN'T THIS NOMINATION A SHOE-IN? A DONE DEAL?
No. It's not. Inside sources are telling me the situation is quite fluid...

One of the things that would help is you --- calling your Senator, or visiting his or her district office. A public outcry in the next few days could strengthen the resolve of Democrats to filibuster. A few Republicans could even be encouraged to think twice about voting in support of Alito. The administration recently waged a fierce battle to gain even more powers under the Patriot Act --- Congress staved that off. Some of the Alito issues are similar.

Alito is not just a garden variety conservative. Senators need to understand that by confirming Alito, they would shrink Congress's Constitutional power --- in effect, cutting their own throats.

WRECKING THE CONSTITUTIONAL BALANCE OF POWER
Both newly appointed Chief Justice John Roberts and nominee Samuel Alito endorse an out-of-the-legal-mainstream theory dubbed the "unitary executive." This theory would elevate the president's powers at the expense of the Congress and judiciary branches, wreaking havoc with the balance of power. Given that President Bush is currently under fire for authorizing torture, and warrantless NSA wiretaps of American citizens (which is a felony), allowing him to appoint another justice who seems hand-picked to approve of that would be ill-advised, to say the least.

Alliance for Justice (AFJ) wrote that Alito's "judicial record strongly suggests that he will ... interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security." Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans.
-- Marjorie Cohn, "Alito Sounds Death Knell for Individual Rights", t r u t h o u t, January 10, 2006

"Alito's defense of Nixon-era officials implicated in illegal wiretaps makes clear--in light of today's NSA wiretap scandal--that the Bush Administration's motives in Alito's nomination extend well beyond a token nod to social conservatives."
-- "The Case Against Alito", The Nation, editorial | posted January 5, 2006

INDEPENDENCE OF AGENCIES LIKE SEC, EPA COULD BE THREATENED
In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the "unitary executive," which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.
-- Marjorie Cohn, "Alito Sounds Death Knell for Individual Rights", t r u t h o u t, January 10, 2006

ADDITIONAL ATTEMPTS TO GRAB POWER FOR THE PRESIDENT: SIGNING STATEMENTS
Alito was one of those pushing to elevate the power of the presidency two decades ago, by advocating "that the president make a 'signing statement' indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts' focus away from congressional intent in favor of what he called 'the President's intent.' George W. Bush has issued at least 108 such "signing statements," according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.
-- Marjorie Cohn, "Alito Sounds Death Knell for Individual Rights", t r u t h o u t, January 10, 2006

Bush "issued a constitutionally ludicrous 'signing statement' on the McCain bill. The message: Whatever Congress intended the law to say, he intended to ignore it on the pretext the commander in chief is above the law. That twisted reasoning is what led to the legalized torture policies, not to mention the domestic spying program. ... Both of the offensive theories at work here - that a president's intent in signing a bill trumps the intent of Congress in writing it, and that a president can claim power without restriction or supervision by the courts or Congress - are pet theories of Judge Samuel Alito, the man Mr. Bush chose to tilt the Supreme Court to the right."
-- "The Imperial Presidency at Work", New York Times | Editorial, Sunday 15 January 2006

MEMORY LOSS, ETHICS
“Judge Alito continues to claim memory loss when it comes to his involvement with the Concerned Alumni of Princeton, a group hostile to the university's admission of women and increased enrollment of minorities. Even less plausible is his testimony that he was not aware of the group's well-known anti-woman and anti-minority positions when he touted his CAP membership on a job application in the Reagan Administration."
-- National Women's Law Center

In addition, when it came to recusing himself in cases where he had a conflict of interest, Alito previously promised Congress that if there was a case involving something where he had investments, specifically Vanguard, he would recuse himself. Such a case did come before him and, despite his several hundred thousand dollars in investments in Vanguard, he did NOT recuse himself. He has yet to provide a satisfactory explanation.

SEX DISCRIMINATION
...“Judge Alito's testimony about his record on the Third Circuit in employment discrimination cases does nothing to allay our concerns in this area, either. He has repeatedly taken positions that make it harder for victims of workplace discrimination to succeed in court or even to get to a jury. ...Samuel Alito's legal views would put women's hard-won rights and liberties in grave danger."
-- National Women's Law Center Co-President Marcia Greenberger, January 12, 2006

ROE v. WADE
As Prof. Laurence Tribe testified, with Alito on the court "the court will cut back on Roe v. Wade, step by step, not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental underlying right to liberty becomes a hollow shell."
-- New York Times, January 12, 2006

"While in the Solicitor General's office, Alito urged the government to file an amicus brief in Thornburgh v. American College of Obstetricians and Gynecologists. In a 17-page memorandum, he argued that the case offered an 'opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.' His memo argued in favor of upholding even the most burdensome and dangerous barriers to abortion."
-- Alito and Women's Issues - Fact Sheet [PDF], National Women's Law Center

STATEMENT OF AL GORE re PRESIDENTIAL POWER
Speaking on Martin Luther King Day 2006, Al Gore said:

"The President's judicial appointments are clearly designed to ensure that the courts will not serve as an effective check on executive power. As we have all learned, Judge Alito is a longtime supporter of a powerful executive - a supporter of the so-called unitary executive, which is more properly called the unilateral executive. Whether you support his confirmation or not - and I do not - we must all agree that he will not vote as an effective check on the expansion of executive power. ...

If this President's attempt to dramatically expand executive power goes unquestioned, our constitutional design of checks and balances will be lost. ...

Can it be true that any president really has such powers under our Constitution? 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 prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can't he do?
-- Complete Text of Gore Speech

STATEMENTS OF THREE SENATORS ON THE JUDICIARY COMMITTEE
Sen. Patrick Leahy (D-Vt.) said, "It's important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him." --- Marjorie Cohn, "Alito Sounds Death Knell for Individual Rights", t r u t h o u t, January 10, 2006

Sen. Leahy also said, "The Supreme Court must be an institution where the Bill of Rights and human dignity are honored. At a time when the President is seeking unprecedented power, the Supreme Court needs to act as a check and to provide balance. Based on the hearing and his record, I have no confidence that Jude Alito would provide that check and balance. In good conscience, based on the record, I cannot support this nomination."
-- Nomination Watch

Sen. Edward Kennedy: "[H]is views on issues of particular concern to women should give every woman pause ... Judge Alito's testimony failed to resolve the very serious concerns that he's itching to overturn Roe v. Wade. ... His record just does not show a judge who is committed to equal justice under law."
-- Nomination Watch

Sen. Richard Durbin: "In the Bible, Solomon personified the virtue of wisdom, and when God offered him any gift, Solomon asked for a caring heart. In the record, the writings, the works, and the life of Samuel Alito, I searched for evidence of his caring heart - evidence that for the next two or three decade he would use his position on the Supreme Court to enlarge our freedom, protect our privacy, and respect the delicate balance of power and responsibility our Constitution creates. At the end of the day, at this historic moment, I cannot say with confidence that Samuel Alito meets that test. I will vote no on the nomination of Samuel Alito to the Supreme Court."
-- Nomination Watch

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