The Alito Shuffle

Cohen: Alito Hearings Will Be Passionate, But Outcome Is Set

(CBS) 
So Judge Alito will get drilled for his views about the White House's domestic spying program, which no court in the nation has ever endorsed. Does he agree that the president's constitutional war powers trump the search-and-seizure protections of the Fourth Amendment? If so, why? And what would the limitations be on this presidential power? Judge Alito also will be harried to explain why he believes the executive branch has the power to "interpret" certain presidential actions in a way that expands presidential power. Does it concern him at all that the executive branch would attempt in this way to preempt a core judicial duty, the interpreting the legality of governmental actions? If not, why not?

Judge Alito also should be nudged into talking about the Geneva Convention's prohibitions against torture and why for too long the Administration simply blew them off. Should not the United States recognize not just the letter but also the spirit of the international treaties to which it is a signator? He should be asked about the president's power to unilaterally declare U.S. citizens as "enemy combatants" and deprive them of core due process rights. He should be asked about the military tribunal procedures set up to handle the Guantanamo Bay detainees. In short, Judge Alito should be asked all of the vital terror law questions that Committee members would love to have asked, under oath, to the president, or Vice President Dick Cheney, or any of the other architects of the current presidential power-grab.

Judge Alito will likely be asked these questions with an intensity and ferocity that was missing during the Roberts' hearing. And in the end, although he will fail to offer many specifics by claiming he cannot discuss issues that might come before him as a justice, he ultimately will have to tell the Committee whether he believes in a stronger judiciary or a stronger presidency. It's an area of inquiry that has become far more urgent now than it was during the Roberts' hearing in September, before we learned about warrantless domestic spying, secret torture prisons in Eastern Europe, the White House's sudden change-of-heart about Jose Padilla, and many other uncomfortable things about the way our government has chosen to wage the war on terror.

Alito will be asked these terror law questions in addition to the litany of other questions that have become so familiar at these ritualistic events. Abortion rights? Any reasonable person who read Alito's Reagan-era memos can hardly deny that he came across as someone who believed profoundly that Roe v. Wade was wrongly decided. So if he believed it then why should he not be presumed to believe it now? The "different hats" argument - that in 1985 he was a zealously advocating a position on behalf of a client and that he will look at things differently as a Justice - only goes so far. No one who endorsed or who was neutral about Roe would have or could have written as passionately and eloquently about its demise as Judge Alito did as a young attorney. Why shouldn't we think he'll apply the same legal reasoning now as a Justice to undercut the precedent?

Civil rights? Judge Alito will have to explain his apparent disdain for the core voting principle of "one-person, one-vote," the doctrine which (when endorsed by the Supreme Court in the early 1960s) broke the back of the rural cliques that kept disproportionate political power for themselves at the expense of minorities and the poor. The one-person, one-vote doctrine is so generally accepted today in the law that it would be startling for any Supreme Court nominee not to embrace it enthusiastically. We'll see. We'll also see how he defends past decisions that seem to suggest an unwillingness to defer to legislative decisions even as he has been gleeful about deferring to executive branch choices. Is he going to be a Hamiltonian justice, full of pride in and support for a strong executive? Hopefully he will say so.