Below's an e-mail I sent today to Senator Evan Bayh of Indiana urging him to follow the lead of his father, who in 1970 killed two disastrous Supreme Court nominations (Haynesworth & Carswell) almost single-handed.
In both nomination battles, Birch Bayh was belittled by the media for tilting at windmills. But he prevailed in the Senate.
In light of the massive abuses of power we have seen from this administration, and its breathtaking assertions of executive privilege, Alioto, one of the founding fathers of the theory of "unitary executive privilege," is democracy's worst nighmare.
Dear Senator Bayh:
Your father's signature contribution to American life was not the 25th Amendment to the Constitution governing presidential succession (as important as that has proved to be) but his singular triumph in protecting the sanctity of Supreme Court from radicals and reactionaries.
It is easy to forget today what the climate was like in 1970. That was the year in which Richard Nixon put forth the names of, first, Clement Haynesworth and then, G. Harold Carswell as nominees for the U.S. Supreme Court. The former was a mediocrity; the latter had a history as an avowed segregationist.
To his everlasting credit, Birch Bayh led the Democratic opposition to both nominees. Your father prevailed in turning back both men, despite the conventional wisdom at the time (particularly around Carswell) that he had embarked on a fool's errand.
Today, President Bush asserts a presidential right to spy on American citizens. He asserts a presidential right to imprison American citizens without charges. He asserts a presidential right to hold American citizens prisoner without access to legal counsel. He asserts a presidential right to withhold information from Congress. He asserts a presidential right to make policy in secret. He asserts a presidential right to interpret the will of Congress, a separate and co-equal branch of government. He asserts a presidential right to conduct a "rendition" program that delivers terrorist suspects for torture abroad. And of course he denies a "policy" of torture, defining it apparently (as his Attorney General has) as something leading to organ failure or death. If the president does not believe himself to be above the law, he certainly acts that way.
In light of that attitude, his recent nomination of one of the founding philosophers of the theory of "unitary executive privilege" is profoundly troubling. Unwilling to submit to the Constitutional check of Congress, President Bush is in the process of packing the Supreme Court to co-opt this third co-equal branch of government.
Judge Samuel Alito is the most dangerous, radical and reactionary nominee to the U.S. Supreme Court that I can recall in 50 years of following American politics.
I urge you to take up your father's legacy and lead the opposition to his nomination. Indeed, I urge you to announce a filibuster against the nominee. It can be sustained. People eager for leadership will flock to your banner. The Republicans in their current discredited political situation won't dare invoke the "nuclear option." And in years to come the name Bayh will continue to be revered among people devoted to American freedom.