This is a phrase that's making its way now into the public consciousness, and it puts a tag on something that we've been witnessing for the last four or five years, which is our drift toward authoritarianism. The "unitary executive" is code on the authoritarian right for the legal argument justifying the president's doing pretty much as he pleases without any legislative or judicial oversight.
Alito said in his testimony this week that the president is not above the law, but if he believes it's constitutional for the president to ignore laws enacted by congress, then he's not above the law; he's within his constitutional rights as he believes the constitution defines executive powers. In other words, the supreme law of the land embodied in the constitution exempts the president from following the law as it might be legislated. Jurists like Alito think that the constitution justifies this interpretation of executive powers, and that's pretty scary. See here and here for a good explanation of the "unitary executive" argument, especially with regard to the importance of "signing statements," most recently used by Bush to exempt himself from the restrictions of the McCain Amendment banning torture.
Twenty years ago the idea of the "unitary executive" would have been dismissed by most thoughtful Americans as a crank theory by some wingnut from the Federalist Society. Oh, guess what? That's where Alito first proposed the signing-statement strategy in 1986. Now we have Alito, one of the chief proponents of the unitary executive argument, taking a spot on the Supreme Court. That should be chilling, but for most Americans it's a threat too abstract to worry about, so they don't.
Even if the American electorate votes this dangerous GOP power block out of their various offices in the next couple of elections, it will be back. Americans' memories are short, and the militarism and authoritarianism that are at the heart of the right's agenda resonate positively with an anxious electorate in troubled times. Its fears, as we've seen since 9/11, are discouragingly easy to manipulate. We have a court now that is building a legal infrastructure that will facilitate a further drift to the right, and any president inclined toward authoritarianism will find it perfectly legal to do his authoritarian thing.
Putting Alito on the supreme court is an important piece in the authoritarian right's long-term strategy. As I've said time and again, these Bush supreme court nominations are not about abortion. Abortion is a smokescreen. The primary agenda is power consolidation.
What we're seeing unfold in the Beltway with regard to Abramoff and Delay is facetious. They're both larger-than-life comic-book villains. Abramoff, with his black hat even dresses for the role. But what we're witnessing with Alito is harder to grasp because of its abstractness and banality. It doesn't fit into the collective perceptual frame that recognizes evil. It puts me in mind of Hannah Arendt's famous phrase, "the banality of evil." I don't think Sam Alito is an evil man any more than the rest of us are. He strikes me rather as a little man who wants to play with the big boys.
I'm sure he's very smart and knowledgeable, but it's not what's in a man's brain that I care most about, but what are the inclinations of his soul. I don't have a problem with principled, small government conservatives. But that's not the same thing as being a man of the authoritarian right. The authoritarian right wants a strong, powerful central government. It wants unlimited police powers. It is obsessed with security. It favors the strong against the weak. There has been so much evidence that Alito's soul is inclined in this direction.
But in the final analysis this nomination is not about what Sam Alito thinks; it's about what the big boys think, and believe me, they're up to no good. People who are inclined toward authoritarianism are little people who follow orders who do so in the hope someday to be a big boy who can give orders. The Bush government is full of little people, their incompetence often overlooked, and the whole drift of our national life is in the direction of letting this kind of person take over and run our governmental institutions into the ground. Often their competence is less important than their willingess to do as they're told. With Alito, competence is not the issue, but he gives me the impression of being the good soldier.
This nomination is not about Alito as an individual or about his qualifications for the court; it's about how his nomination is a piece of a much larger picture that we have trouble bringing into focus. And we're in big trouble if we don't soon find a way to bring it into focus. So many terrible things have happened since the Bush administration took office, but the seating of this single, banal little man on the supreme court might turn out to be the most terrible.
Late Update: Robert Gordon at TPM Cafe here and here makes the case against Alito that I would make if I were as knowledgeable as he. Closing grafs:
Alito tends to looks reasonable and moderate because of his style. But his style conceals a strategy. In his Justice Department days, Alito was up front about this. He often advised his superiors not to seek direct overruling of the cases they disliked, such as Roe v. Wade, but to pursue an incremental strategy — to whittle away, case by case, at the surviving legal legacies of the liberal period. In the current political stalemate, where neither side can muster the votes to significantly amend legislation, whoever controls executive agencies and the courts can accomplish repeal of liberal policies, even those that command widespread public support, by stealth. At present the stakes in this battle are about as high as they can be, because the courts are assigned an essential role in preserving the Constitutional balance of power and the rule of law, against an executive that claims for itself dictatorial discretion. In particular, if the courts will not protect the liberties of unpopular subjects, such as those accused of aiding terrorists, no one will.
John Roberts played for Democratic votes in the Senate simply by asserting his independence from factions and patrons and declaring, "I am not an ideologue". This seemed to work in his case, and now only time will tell if it is true. Clarence Thomas told the Senate the same thing, that he had an open mind and no agenda. In his case it turned out not to be true. In Alito's case, unfortunately, almost nothing indicates that he has the independence to deviate from the causes that impelled him into law and a lifetime of federal service as a soldier in the conservative movement. If he is unwilling firmly and forthrightly to declare his independence from the ideologies and executive authorities he has served his entire career, the Democrats should try to keep him off the Court by filibuster.
Amen.
Leave a Reply