X-Judges

In two weeks the confirmation hearings for Judge Alito will begin under the helm of Sen. Arlen Specter (R-PA). Specter is known to be a relatively moderate Republican. He often tows the party line; however, he is pro-choice and must get re-elected in a “swing state” in 2010. There was controversy over his receiving the Judicial Committee chairmanship position when he stated that he would use his position as chairman to block “extremist” judges appointed by President Bush. He ultimately retracted this statement, but regardless of his subsequent statements, he made it clear what his position on ideological judges is and will be.

Thanks to Bush’s incompetence, Judge Alito’s nomination did not occur until relatively late in 2005, and the confirmation hearings were scheduled for after the holidays. Had Bush not nominated the unqualified Harriet Miers, it is possible the Alito nomination hearings would have been held by now, and it is likely that a confirmation vote would have resulted in Alito being placed on the high court. Things are different now, however.

Until recently, the only issues that the Judiciary Committee was going to have to address was whether Alito would affirm Roe v. Wade as the Supreme Court has done on at least two occasions and whether Alito can be trusted to recuse himself when he has a conflict of interest with a litigant in a matter he is hearing unlike Justice Scalia who hears cases regardless of a potential conflict of interest. Now, however, thanks to the delay in the confirmation hearing process, a new and potentially devastating issue has cropped up - domestic spying.

Alito wrote a 1985 memo stating that the government has the authority to engage in domestic spying and that even if it did not, the Attorney General should receive immunity for any illegal acts he may commit in the process of conducting domestic spying operations. This appears to be a position that is consistent with the Administration’s actions giving the NSA authority to track domestic communication despite a 1978 law prohibiting it.

This one issue could and should derail Alito’s nomination. The nation is outraged at the idea that our government would conduct domestic spying activities and circumvent the Foreign Intelligence Surveillance Act (FISA). Under FISA the administration could easily have obtained warrants to conduct legitimate operations; in fact in the history of the Act, only 4 requests have been turned down. The circumvention of the Act indicates that the surveillance was on improper persons and for illegitimate reasons.

Alito’s support for such activities, especially in conjunction with his position on abortion and his refusal to recuse himself when his own personal finances could be affected by his decision, shows that he is an “extremist” judge that must be denied confirmation. This is the very type of judge Sen. Specter said he would block, and it is time that the good Senator made good on his promise.