Letter to the Editor: Senate Should Reject Nomination of Judge Samuel Alito

Guest Opinion by Roger A. White, Esq. Judge Samuel Alito should not be confirmed as a Supreme Court Justice because of his record and his Senate testimony in favor of the radical "unitary executive" theory now practiced by the Bush administration. Adherents of this theory argue that Congress has no authority to restrict the president's power over executive branch operations, and any president who refuses to obey such a statute of Congress is not really breaking the law. This is particularly troubling in light of the Bush administration's NSA domestic surveillance program. In the Foreign Intelligence Surveillance Act (FISA), Congress expressly declared that FISA is the exclusive method available to the executive branch to obtain a warrant for surveillance of foreign agents and suspected terrorists. The Bush administration has expanded the scope of its surveillance program to include American citizens, who are protected by the probable cause requirement for a warrant under the Fourth Amendment. Recent reports in the New York Times, Los Angeles Times, and Washington Post reveal that the NSA and the Pentagon are using "data mining" operations known as Talon, Echelon and Carnivore, previously restricted by federal law to overseas spy operations, to intercept telephone communications, faxes and e-mails of Americans citizens in search of "key words" to identify a pattern used in profiling possible suspects. These spy tools are so powerful that they are capable of intercepting all communications - including yours and mine, not limited to suspected terrorists as the Bush administration questionably claims without proof. The Bush administration has taken the position in a recently released legal brief from Attorney General Alberto Gonzales and the Department of Justice that it is not bound by the FISA statute, under an expansive view of the unitary executive theory. In fact, the legal brief argues that FISA is unconstitutional pursuant to the unitary executive theory. The president essentially argues that he has the inherent power as the executive to take any action he alone deems necessary "to protect the country" without limitation from congressional oversight or judicial review. The president's argument is a radical departure from American constitutional law, and is alien to our republican form of government. Judge Alito in his Senate testimony indicated his support for this radical theory. Judge Alito responded to direct questioning on this subject that a president could violate a statute "if statutes are unconstitutional because the Constitution takes precedence over a statute." When given the opportunity repeatedly during direct questioning to disavow the unitary executive theory, Judge Alito refused to do so. This should come as no surprise to anyone. Judge Alito, when he served in the Reagan administration, was the architect of the presidential "singing statement" by which the president attaches a written statement of his interpretation of a law passed by Congress. President Bush recently used a presidential signing statement to eviscerate Sen. John McCain's anti-torture amendment by declaring that the president is not bound by the law "in extreme circumstances," circumstances which the president alone has the power to determine under the unitary executive theory. The Constitution nowhere provides for presidential signing statements. Presidential signing statements are not entitled to any deference from the courts, because they are extra-constitutional in nature. Does anyone seriously believe that Judge Alito, the architect of this unconstitutional practice, would not find that presidential signing statements are entitled to judicial deference? This would effectively allow the president to decide not only what laws he chooses to follow, but would insulate the president from the Supreme Court finding his actions unconstitutional. The rule of law upon which this country was founded would cease to exist. Judge Alito apparently is of the belief that a president may decide by executive fiat what law is or is not constitutional, and whether he is bound by the rule of law. Judge Alito's willingness to elevate the president to an exalted status above the law is truly frightening to hear from a Supreme Court nominee. This view harkens back to the divine right of kings (the king is accountable to no one but God), which was forever rejected by our American Revolution. Judge Alito is clearly signaling in his Senate testimony that if he is appointed to the Supreme Court, he will serve as a rubber stamp for the exercise of unchecked executive power. Americans already have a Republican Congress which has voluntarily neutered itself and serves merely as a rubber stamp for executive fiat. Americans cannot afford to lose constitutional review by the Supreme Court as well. The survival of our republican form of three co-equal branches of government and democracy itself is in serious jeopardy and in danger of being lost. America can do better. There are many more eminently qualified judges available to serve on the Supreme Court who do not subscribe to this radical ideological theory of governance alien to our republican form of government. I urge the Senate, and all Americans, to step back from the precipice and to reject the nomination of Judge Samuel Alito. The very Constitution itself is at stake. Roger A. White is an trial attorney who has spent a lifetime studying the writings of the Founding Fathers and Constitutional law.