Liberals on the Senate Judiciary Committee have been wringing
their hands over Judge Samuel Alito's belief in the theory of the
"unitary executive," which holds that the Constitution vests the
presidency with sweeping power, especially in wartime. But their
questioning of Alito reveals their own casual embrace of their own
unitary theory-that of the "unitary judiciary."
Underlying every question posed to Alito is the growing and seemingly unbridgeable gap between liberals and conservatives regarding the scope of the judicial branch's authority.
"It seems," a bemused Sen. Sam Brownback (R.-Kan.) said on the opening day of hearings, "like we're back at an old debate: the role of the courts." So old, in fact, that Brownback reminded his colleagues of the seminal case of Marbury v. Madison (1803) where our first Chief Justice, John Marshall, set forth the principle of judicial review and the doctrine that, by preventing federal courts from either writing or executing the laws, the Constitution limits the scope of judicial authority.
"That narrow scope of judicial power," Brownback observed, "was the reason that people accepted the idea that the federal courts could ... decide whether a challenged law comports with the Constitution. The people believed that while the courts would be independent, they would defer to the political branches on policy issues."
To Brownback's liberal colleagues on the Senate Judiciary Committee, however, the courts' power rivals that of the Almighty himself.
"If confirmed," New York's Chuck Schumer (D.) lectured Alito, "you'll be one of nine people who collectively hold power over everyone who lives in this country. You'll define our freedom, you'll affect our security and you'll shape our law. You will determine on some days where we pray and how we vote. You'll define on other days when life begins and what our schools may teach. And you will decide from time to time who shall live and who shall die."
These decisions, Schumer added, are final and appeals are impossible. "That," intoned Schumer, "is the awesome responsibility and power of a Supreme Court justice."
Awesome, indeed. Liberals hold the judicial branch in such high esteem, pit bull Dick Durbin (D.-Ill.) explained, because the courts systematically usurp the legislative role that Chief Justice Marshall and the other Founders envisioned for Congress.
"In my lifetime," he cooed, "it's the Supreme Court, and not Congress, that integrated our public schools, allowed people of different races to marry, and established the principle that our government should respect the value of privacy of American families. These decisions are the legacy of justices who chose to expand American freedom." Durbin could have cited additional instances where activist justices "chose to expand American freedom"-by unilaterally raising taxes to finance those schemes, deferring to international legal precedents to justify them, and airbrushing entire phrases out of the Constitution to facilitate the exercise of unbridled government power to, for example, seize private property.
A More Just Society
So what is the judiciary's proper constitutional role, according to Samuel Alito himself?
Asked by Iowa GOP Sen. Chuck Grassley whether he agreed with the notion that "judges are free to create a Constitution that they think best fits today's changing society," Alito explained that the judiciary "has to restrain itself and engage in a constant process of asking: 'Is this something we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?'"
He continued: "If the courts do the job that they're supposed to do, we will produce a more just society." How so? "Our Constitution and constitutional system ... gives different responsibilities to different people." Echoing an analogy used by Chief Justice John Roberts during his confirmation hearing, Alito elaborated:
"You could think of a football team or an orchestra where everybody has a different part to play, and the whole system won't work if people start performing the role of someone else … I think you have to have faith, and I think it is a well-grounded faith that if the judiciary does what it is supposed to do, the whole system will [produce] a more just society."
Yet Senate liberals such as Ted Kennedy, Chuck Schumer and Dick Durbin appear determined, even as duly elected members of the legislative branch, to sit on the constitutional sidelines and cede their playing time and their clearly delineated constitutional authority to those in the judicial branch. Happily, Judge Alito's understanding of the Constitution forces them to get out there and fulfill the active role our nation's Founders envisioned for the Congress.
Mike Franc, who has held a number of positions on Capitol Hill, is vice president of Government Relations at The Heritage Foundation.
First appeared in Human Events