Alito and Executive Power

I'm still digesting the significance and effects of the possibility that Bush authorized illegally the domestic spying program before 9/11 (see below). This will likely change greatly how I feel about the confirmation of Sam Alito. Alito's record is one of extreme sympathy for untrammeled executive power (as this article elucidates), but that's really not what has gotten the press.

A document (pdf) prepared by the People for the American Way focuses for the most part on his decisions about discrimination lawsuits, machine guns and spousal notification. While those are important issues, if Bush has a clear agenda in nominating Alito, it's not likely to pertain to any of those things. Bush's hallmark has frequently been his self-interest, and if that concern obtains here, he will have nominated a judge who will be likely to cover his ass in the possibility that he or his cronies are brought before the Supreme Court for their recklessness and abuses. Alito's work for Reagan essentially set the groundwork for many of the arguments that may be used in defending the President or his agents from prosecution regarding the domestic spying. (Read the testimonies of Professor Chemerinsky and Beth Nolan from the 5th Day of the hearings for more.)

If, in fact, Bush authorized parts of the NSA spying program prior to 9/11, it is an unmistakable sign that he is not merely opportunistic in using 9/11 to expand his powers, but intended effectively since his inauguration to broaden them to the fullest possible extent. I think we should all be much more worried about the possibility of an autocratic executive than the likelihood that conservatives will control indisputably all three branches of the government. I have faith that the checks and balances of the Constitution, if working properly, will do their job and keeping conservatives from totally remaking the country in their own image. But if the executive sweeps these checks away, we're truly in danger.