http://www.chicagotribune.com/news/local/c...ll=chi-news-hed

Durbin says he'll oppose Alito

By John Chase
Tribune staff reporter

January 19, 2006, 3:40 PM CST

Raising questions about Judge Samuel Alito's stances on issues from executive power to abortion, Sen. Dick Durbin (D-Ill.) on Thursday said he would not support Alito's nomination to the Supreme Court.

Durbin's announcement, made to a near-packed hall at Northwestern University's School of Law in Chicago, coincided with similar statements from Democratic Sens. Patrick Leahy of Vermont and Ken Salazar of Colorado.

Both Leahy and Salazar supported Chief Justice John Roberts' nomination in September, though Durbin did not.

The Senate Judiciary Committee is expected to approve Alito's nomination on a party-line vote next week and move the nomination to the full Senate where a confirmation vote is expected to follow by the end of the week.

In making his case for why he wasn't going to support Alito in the Committee vote, Durbin noted that Alito would be replacing Justice Sandra Day O'Connor, who was often perceived as a critical swing vote on the court. Durbin said that over the last decade, O'Connor was the fifth vote in 148 of the 193 Supreme Court cases decided by a 5-4 margin.

"What did we learn about Judge Alito in his confirmation hearings? Unfortunately, very little," Durbin said. "Judge Alito was extremely guarded in his answers. He was even less forthcoming that Chief Justice Roberts was in his confirmation hearings."

Durbin was particularly critical of what he termed Alito's "deference to established institutions over individuals" and argued that Alito "failed to show that he will protect the average American from the overreaching hand of government."

Durbin also criticized Alito for his position on executive power, saying he didn't think Alito would be willing to stand up to a president seizes too much power "over our lives."

Durbin's comments dovetailed with those made by Leahy and Salazar.

"Can this President, or any President, order illegal spying on Americans? Can this President, or any President, authorize torture, in defiance of our criminal statutes and our international agreements? Can this President, or any President, defy our laws and Constitution to hold American citizens in custody indefinitely without any court review?" Leahy asked in his statement.

"…I have concluded that this nominee has failed to address these central concerns on the issue of government power…There is no reason to believe that Judge Alito will serve as an effective check and balance on government intrusion into the lives of Americans. Indeed, his record suggests otherwise."

"Judge Alito would place too much power in the hands of the president of the United States, at the cost of the protective system of checks and balances built into our Constitution," Salazar said in a statement.

The scariest thing I've heard so far about Alito is contained in the article below. I've highlighted the key part, but you kind of have to read the whole thing to understand what it's saying. Sorry. But it's very enlightening. And scary. Particularly in light of Gore's speech last Monday.

http://www.time.com/time/magazine/printout...1149361,00.html

We Don't Need a New King George
How can the President interpret the law as if it didn't apply to him?
By ANDREW SULLIVAN

A somewhat legal law is a little like a somewhat pregnant woman. At first blush, it seems like an absurdity. But President Bush disagrees. In the past five years, quietly but systematically, he has been arguing that the law doesn't always apply to him. How has he done this? By attaching "signing statements" that spell out his own attitude to bills he signs.

Previous Presidents have sporadically issued signing statements, but seldom and mainly as boilerplate or spin. Until the 1980s, there had been just over a dozen in two centuries. The President's basic legislative weapon, after all, is the veto power given him by the founders. He can use the power as leverage to affect legislation or kill it. But he cannot legislate himself or interpret the law counter to Congress's intent. Signing statements were therefore relatively rare instances of presidential nuance or push-back. In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105.

In five years, President Bush has already challenged up to 500 provisions, according to one tally--far, far more than any predecessor. But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive. Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That's how our democracy works, right?

Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.

He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Translation: If the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." That is, of course, a very strange idea--which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the President's view is utterly irrelevant. Alito seemed to concede that at the time, recognizing the "novelty of the procedure and the potential increase of presidential power."

Alito, of course, didn't foresee the war on terrorism. But put a war President's power together with the new use of signing statements, and Executive clout has been put on steroids. "If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived," argued Senator Lindsey Graham, a Republican from South Carolina.

As Graham shows, this isn't a Republican-Democrat issue. It's a very basic one. A President, Democrat or Republican, has every right to act unilaterally at times to defend the country. But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It's disturbing to think we may now be quietly installing a second one. Andrew Sullivan's blog, the Daily Dish, can be found at time.com