Law Professor Sandy Levinson writes at
Prof. Jack Balkin's Blog:
Samuel Alito may turn out, perhaps fortunately for the rest of us, to be a victim of cruel fate, being the wrong person in the wrong place at the wrong time. Here he is, a noted-and more than competent, in any conventional sense-ultra-conservative who has the misfortune of having to face the Senate on January 7 in effect to defend his nomination to the Supreme Court by President George W. Bush.
. . . Alito was clearly not nominated simply because he has doubts about Roe v. Wade. One could reel off at least a dozen of plausible nominees who share that hostility. . . . So what does explain Alito's nomination, given that by any plausible account McConnell would have been a more distinguished nominee with easier prospects of confirmation? The answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the "Commander-in-Chief" Clause of Article II of the Constitution.
. . . This makes it essential, obviously, that every member of the Senate Judiciary Committee grill Judge Alito on his views of Article II, the Commander-in-Chief Clause, and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President basically to do whatever he wishes so long as there is a good faith belief that it is "defense" of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the "amputated Constitution" should give us all pause.
Had Alito been nominated two years ago, many of these questions might have sounded "academic." In the aftermath of the disclosure of memos written within the Department of Justice justifying the President's "inherent" right to torture and then, more recently, of Bush's own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic.
What he said.