A Third Path

[galloglas]

(Since Kerry has called for the filibuster, this may be all the more important to consider)

The phone lines are burning up in DC. Regardless how things seem to
be going, it isn't over.

I have been on the phone today to five GOP Senators as well as Dems.
That sense of overbearing, that Senator Frist is so known for, seems
lacking today in the GOP offices. They are not relishing a bloodbath
anymore than the Dems.

So, what choices do we have.

1) Defeat Alito... it isn't gonna happen

2) Filibuster Alito... God only knows what will happen

so, I floated something to the GOP Senators. Goes like this.

Unlike John Roberts, Judge Alito's nomination was

1) still pending when the NYTimes broke the domestic spying scandal

2) Bush, perhaps surprisingly, did not try to deny it. He claims it is legal

3) His claim will be investigated by Congress (in Feb)

4) If Congress finds the Bush actions illegal, Bush will appeal to the Supreme Court

5) In this case, as well as any criminal cases that could evolve
from the hearings, Alito will be judging the man who appointed him

6) To save an ugly domestic situation, potential conflict by
citizens, Alito would have to recuse himself.

SO......

In order to avoid the above problem, and to preserve the integrity of the upcoming hearings, there should be a bipartisan effort to do one of two things.

1) Agree to delay the vote on Alito until the hearings are over

OR...

2) have Alito recuse himself from any case where an
administration employee, or a federal agency, is a defendant.

The five GOP offices thought it made good sense (gets them off the hook). So, does it make sense to you all??

If so, we should keep calling and asking for the order of the hearings and the Alito votes to be changed.

[NV Whino]

1. Makes sense.

Won't happen.

But it's a good thought.

[jsamuel]

2. nm

nm

[BlueIris]

3. Yep. Thank heavens.

Not.

I love Ignore.

[leftstreet]

4. This is excellent.

Alito should withdraw his nomination.

Isn't that what uberCreepy Bill Kristol said about Harriet Miers?

[Joe for Clark]

5. I know you mean well,

But no, we better start defining ourselves. And we better start finding our leaders.

We cannot compromise a principle - cause then we will lose. We can afford to lose the fight, but not the issue.

Hell I am the first to compromise. Not here and not now. We really can lose and win at the same time- as long as we have "balls", so to speak.

I'd give this guy up to win in November - it is a good trade. It has to do with the fight we are willing to put up, right now. That simple.

These people have jobs they want to keep this November - I'd remember that.


Joe

[galloglas]

12. It's a tough call

But, my own thoughts are:

We cannot compromise a principle - cause then we will lose.

I agree completely.

We can afford to lose the fight, but not the issue.

Depending on how things play out, this could be the whole ball game right here. IOW, lose the fight, we lose the issue.

That's why I wondered what the GOP stood to lose. Answer: I am not sure. Today convinced me they have asked themselves the same thing. And, I don't think they know. All of this because no one knows what GWB will, or is capable, of doing.

I think they would readily entertain the option, seeing it as a loss for neither side. A guarantee of a vote, up or down, after all of the dirty linen gets aired, makes them look both gracious and, in those intervening weeks, it lets them see what they have at risk.

[Joe for Clark]

16. I think we can afford to lose a fight.

We just can't afford not to fight.

But we are both here and we are fighting like hell.

Joe

[leftupnorth]

6. Sounds like a great strategy

I think that may work, but would they implement it?

The scariest thing about this guy is the unitary executive (dictator) view of the presidency.

I don't need to see any more evidence.....

[galloglas]

31. The "Unitary View" of the POTUS & Executive

The implementation should be relatively simple. It seems similar to the emergence of the "Gang of Fourteen", which was really just an understanding between those Senator's. But it delayed, if not derailed, the use of the "nuclear option", a termed first attributed to Trent Lott.

Now Frist, and the rest of the GOP, have fuller plates. The nuclear option is less likely to be used, even without the agreement. And who knows what revelations or skeletons will emerge next from the indictments and pleas of Abramoff, DeLay, and their cronies.

The answer is that the Senators do.

They knowtheir own dirty linen. And they probably know at least some of the dirt on some of the other Senators and Reps. But none know it all.

OTOH, they know there is more on the way. And, not knowing how any of this might affect them personally, they just have to be nervous, cautious. A good reason to find cover in what will be (for some) a nasty few months.




So, if there are as many as twenty, or even fewer, who are of of a mind to hold hearings before an Alito vote, they could form a bloc to block the majority's demands. It is just a question of doing something out of the ordinary to solve an out of the ordinary problem.

It takes only that small number above, with an absolute conviction that Alito should be confirmed or not, only after Congressional hearings on internal spying have commenced, to agree to push such a rescheduling through. That, but only if it was in the public interest and was done in a bi-partisan manner.

Soon after those hearings commence, everyone will have a much better idea of what issues will be played out in front of the Supreme Court. If Bush himself has the expansive, unitary, megalomaniac view of the Presidency that I think he has, he will refuse even to co-operate with any Congressional investigation.

He would become, I think, guilty of contempt of Congress, thereby provoking a Constitutional crisis. Obviously the Supreme Court would become involved. And with that situation, the compromised position of Sam Alito would be obvious to all.I think this type situation would play itself out quickly.

An agreement to hold an up or down vote on Alito in, say, three or four weeks after commencement of testimony from the Congressional FISA, Internal Surveillance and wiretap hearings should be plenty. Alternatively, it might be set for, say, ten days after the White House delivers to Congress whatever documents Congress deems necessary.

It also gives Congressional members some public political cover. It is the prudent thing to do, to hold hearings first and find out what issues the Supremes (and the public) will face. Politicians love to look prudent and so seldom do. Might be a plus in November.

So, yeah, I think it is doable. But hope springs eternal in the human breast.

[LiberalAndProud]

7. I like it

Which GOP offices "thought it made good sense?"

[galloglas]

10. Which five had a good response.

I am from Missouri. So I spoke to both Talent's and Bond's people, who commented favorably. It solved the problem of using the "nuclear option" to stop the filibuster.

Brownback of Kansas was another (though Pat Robert's people, GOP of Kansas, did not want to talk).

Craig was the fourth, Lindsey Graham was the fifth. But, in Graham's case, they were cagey. I felt as if I was being fished... it was odd.

An addendum, for clarity.

1) I was, obviously, not able to speak directly to any of the Senators, only their "judiciary" staff.

2) I did not declare for or against Alito or identify any political affiliations of my own. Only spoke of Alito's unique position.

3) I was also able to speak to Norm Coleman's office, and felt they missed the whole idea. OTOH, I also spoke to Russ Feingold's people and they said they would meet and speak with Kennedy's and Leahy's people, whom I had spoken to last week.

[Amaryllis]

8. K and R

[Rosco T.]

9. Sounds like a plan n/m

[annabanana]

11. nominated.... very interesting perspective...

[mikelewis]

13. I say, if we are to go down, we go down swinging...

I vote Filibuster

[WLKjr]

14. makes pefect sense, it's why they should oppose him as well

This guy is radio active, and they have latched on to too many of these kind's of people lately, they are hurting thier own credibility, what little they did have.

[FSogol]

15. Alito will forget to recuse himself. Just like in the Vanguard case

where he determined that his investment company was Not Guilty.

[bunkerbuster1]

17. Great idea, but

This is the guy who promised to recuse himself from Vanguard cases.

We've a president who crosses his fingers when he signs the torture bill.

You can't trust these lying mofos any farther than you can throw them.

But I do appreciate the outside the box idea, and hey, it's something to float out there.

[H2O Man]

18. There does not appear

to be any connection between the domestic spying and Alito that would warrent a request that he recuse himself from any cases that might be heard by the court in the future. Rehnquist, for example, recused himself from the case the Supreme Court heard that involved similar issues, but that was because he had been a member of the Nixon administration when the issues involved began. That is not the case with Alito, who has been in the judicial branch for more years than Bush has been president, and has no ties to the administration that would be grounds for him to recuse himself.

[galloglas]

32. Gotta Disagree

You Wrote:
There does not appear to be any connection between the domestic spying and Alito that would warrent a request that he recuse himself from any cases that might be heard by the court in the future.

Only because the spying is acknowledged but not described in extent or detail (personally, I don't believe 500 phone calls a day). There is nothing yet to know. But Alito has weighed in with a favorable opinion of a "Unitary" Executive.

Remember, absence of proof is proof of absence. The very reason a vote should be delayed, is to determine the scope of the problem, which will certainly see its way to the SCOTUS.

Rehnquist, for example, recused himself from the case the Supreme Court heard that involved similar issues, but that was because he had been a member of the Nixon administration when the issues involved began.

Apples and Oranges, I think. Prior employment by a defendant is not necessary for a recusal.

That is not the case with Alito, who has been in the judicial branch for more years than Bush has been president, and has no ties to the administration that would be grounds for him to recuse himsel

No ties? How would we know? Again, absence of proof is not proof of absence. And, there are reasons for recusal that pass personal ties.

Suppose that one of Judge Alito's favored theories was embodied in, say, S.520, The Constitutonal Restoration Act. We know bill that would eliminate Marbury vs. Madison, gut the Republic, and enable a Theocracy.

So,would Alito need to know Bush in order to buy Bush's (potential) defense that "God wants me to eavesdrop on everyone!"? S.520 would give Bush that ability.

What about those WH "legality" claims that have no text behind the powers?

And, "We are at war?", when only Congress can declare war, leaving alone that the GWBush definition of war is everlasting.

[H2O Man]

33. "Absence of proof ....

is proof of absence." Actually, that is incorrect; in law as in science, absence of proof is not proof of absence. You do put it the correct way in your 7th paragraph.

Familiarity is often good .... and in this case, no one familiar with the process or reasons why judges recuse themselves would think there is a valid reason for Alito to recuse himself.

How do we know that Alito has not been part of the administration? Because he is a federal judge, and has been for many years. That's not a serious question. It's not something that can be rationally debated.

The Rehnquist case is a perfect example of why judges recuse themselves from cases. In that sense, you are right with "apples and oranges." The case(s) you suggest have no sound reason for a judge to recuse himself, except that you are sure (and correct) that he would decide the case in a manner that you find offensive.

The guy simply does not belong on the US Supreme Court. A large part of the reason is because of his well documented beliefs in a president with powers that exceed the judicial and legislative branches. The struggle between the executive and other branches in times of "war" is hardly new .... it goes back to at least Jefferson, and has been an issue in almost every administration since. Bush is not making a new claim in any sense, just one that has been answered. The fact that Alito is in favor of expanded presidential powers, beyond what is defined by the Constitution, is the single best reason to reject him as a nominee.

[galloglas]

34. Said absence of proof

You stated:
is proof of absence." Actually, that is incorrect; in law as in science, absence of proof is not proof of absence. You do put it the correct way in your 7th paragraph

My reply: You are absolutely correct.(#&^#$@ typos!!)

You stated:
The fact that Alito is in favor of expanded presidential powers, beyond what is defined by the Constitution, is the single best reason to reject him as a nominee.

And I concur completely. It may not be the only one, but the biggest. And with those "expanded powers" both undefined and, consequently, lacking any prior judicial review or comment, they are potentially unlimited in Alito's mind. That's the forward view.

Retrospectively, I fear Alito would find even Marbury vs. Madison unworthy of being included as stare decisis. Perhaps he would then add a phrase to our US legal lexicon: volare decisis.

[H2O Man]

41. He is actually

far worse than Bork was. It is a mockery of the Constitution that he is being given serious consideration.

[John Q. Citizen]

19. The hearing are going to be run by the corrupt venal bush-brown-

nosing congress, so it will never come up before the supreme court.

You don't think the Repos are going to actually convict bush on anything do you?

[spuddonna]

20. Why exactly would he recuse himself when he didn't on the Vanguard case?

I mean, what guarantee is there? :shrug:

[galloglas]

21. No guarantees, but.....

unlike the Vanguard promise, Alito will not only have his back to the wall, there will be 50 million or so people focused on every word.

Say he promises to recuse in any trial against GWB and Co. Then evidence comes out demonstrating "high crimes and misdemeanors" (imagine what we would know if we had the NSA tracking them the last four or five years) and the Justice Alito didn't follow through? I think his pencil neck would be snapped solely from the howls of outrage.

And I think it would happen quicker than one can say "Anita Hill!"

[gkhouston]

37. going back on that promise would not be grounds for

removing him from the bench. You can bet the Administration would fight that like crazed animals... just like they're fighting to get him on the Court in the first place.

[galloglas]

39. Half Right

A good point, of course. That is why any bloc that came together would have to have an ironclad understanding.

And, knowing the type opposition that the White House would put together, there would have to be some element in any ad hoc agreement which would send Sam back to Juvenile Court if he breached the agreement.

That man, and his weepy wife, want that O'Connor seat very badly. Perhaps enough to swear publicly to resign if any element of the agreement was breached?

[gkhouston]

40. there's no legal mechanism to enforce that

it all comes down to what is word is worth. Nada.

[Sparkly]

22. Imo, ALL who voted to appoint Chimpy should recuse themselves

along with Roberts, appointed BY him.

[yellowdogmi]

30. Correction

All that selected chimpy should be impeached for High Crimes and treason for ignoring the constitutionally laid down process of election of the president. By agreeing to hear the case they all usurped the powers of the legislature. That is where indecision 2000 should have been decided. Just my opinion but I think it is based in fact.

[Gregorian]

23. Thank you. In all of this excitement, I forgot.

We talked about this a while ago.

These are unusual circumstances. And we already know Bush violated the law. At least we know his administration has. On multiple accounts.

Stop. Hold everything.

[leftofthedial]

24. good idea

I'm shocked that a repuke would even entertain it.

[Jamnt]

25. Can you explain...

5) In this case, as well as any criminal cases that could evolve
from the hearings, Alito will be judging the man who appointed him

Wouldn't Roberts also be the judging the man who appointed him?

An another interesting thought....
If Dems get control of Congress...
If Dems hold hearings on election fraud....
If it is decided that one or both elections were stolen....

I think any Supremes appointed during this time should step down, or be forced down.
Just my 0.02

[galloglas]

28. I think I can, I think I can

You said:
5) In this case, as well as any criminal cases that could evolve
from the hearings, Alito will be judging the man who appointed him

Wouldn't Roberts also be the judging the man who appointed him?

Yes. But Roberts state of knowledge of possible "high crimes" (as far as we know) was not such to preclude his hearing the case. He was confirmed before Bush 'fessed up. Alito has not been and would enter with prior (and possibly prejudicial) knowledge.

An another interesting thought....
If Dems get control of Congress...
If Dems hold hearings on election fraud....
If it is decided that one or both elections were stolen....

A hypothetical situation I would like to see come to pass! However, we would be on novo terra firma. I'm sure Jefferson, Madison, Franklin, et al., never foresaw an electronically stolen election.

It would present another Marbury vs Madison. We would need to stitch up what our our Founding Fathers had not foreseen.

I think any Supremes appointed during this time should step down, or be forced down.

A damned fine idea. Might even consider rolling back all legislation passed during those years. That would sure frost 'em!

Just my 0.02

[hvn_nbr_2]

26. Option 2) would be just like Vanguard.

2) have Alito recuse himself from any case where an
administration employee, or a federal agency, is a defendant.

In his previous hearings when he was appointed a judge, he promised the Senate that he would recuse himself from any cases involving Vanguard. Then he ruled in favor of Vanguard in cases that he didn't recuse himself from. His word is worthless. He's a serial liar.

[galloglas]

27. Don't think so...

Not on the basis on Alito's character, but on the basis that it was part of an agreement forged in the Senate, and the 100 Senator's make for a bigger problem than a few hundred, thousand, or even, million, shareholders.

Additionally, since it would be in cases where the Administration or agencies are charged criminally, it is quite likely the first thing that the Prosecutor for the Plaintiff (likely some special prosecutor), the US, would bring to his attention.

If that didn't persuade him, he would himself (I believe) become liable for making such false statements to a Congressional Committee (even though he got a pass on Vanguard) and could be subject to the same penalties and investigations that any public servant might.

Though either Bush or Alito might manage to evade it, neither is above the law. I don't think Congress, or the People, would forget that.

[Czolgosz]

35. I agree. Once Alito had a lifetime appointment there would be no way to

enforce such a promise and Alito is an unethical, lying sack of shit who cannot be trusted to abide by an agreement.

[hootinholler]

29. Nope! Sorry I can't accept that, here's why...

Alito has testified in a prior confirmation hearing before that he would recuse himself in any matter reguarding Vaguard that came before him. It did. He didn't.

That single act alone disqualifies him by showing the lack of integrity I require in a Supreme.

Couple that with the absurd Unitary Executive theory he seems so fond of, and that is one dangerous Supreme.

He needs to be Borked out of town on an express rail.

-Hoot

[Snivi Yllom]

36. Roberts would have to recuse himself also by your logic

im not sure being appointed by someone subject to litigation before you is grounds for recusal however

[galloglas]

38. Different logical basis

Roberts would have to recuse himself also by your logic

I think they are differ scenarios

im not sure being appointed by someone subject to litigation before you is grounds for recusal however

Obviously. Otherwise no one would be able to stand in judgement of a President, never knowing when he might be a party to a particular case.

OTOH, Alito differs from Roberts in that Bush, in mid-December, acknowledged committing acts which will undoubtedly find their way to the Supreme Court.

Roberts, by then, was already confirmed and sworn in. As far as the December-revealed surveillance deeds of the President are concerned, Roberts should be a tabula rasa.

Alito was interviewed by the Senate Judiciary Committee only after the curtain had been ripped from in front of Bush, exposing acts which have never before, in context, been adjudicated.

This, of course, brought the questions about the "Unitary Executive", a phrase with no precise legal meaning. And, there is a great likelihood that the case(s) could be decided on the basis of those heretofore unmentioned and undefined "powers" that Bush has claimed to be acting under.

If Alito had been asked about his views on a "Unitary Executive" and replied "What the **** is that??", there would be no grounds for recusal. But he answered as if he (Alito) did know and had some pre-existing opinions, and its certainly not part of stare decisis.

Since the revelations of Bush in December have taken the question from the realm of conjecture to the realm of "when it will wend its way in front of the Supremes", Alito's recusal is warranted.

It is unfortunate that no one ever thought to ask Roberts, Thomas, or Scalia about the "Unitary Executive". Perhaps, next time, it should be the question answered immediately after "Name?" and "Address?"

[kainah]

42. Alito hearings should never have happened before spy hearings

It seems to me that this is a relatively good approach, although I thought the Dems should have insisted that the domestic spying hearings go first anyway. Another point to add to this is to remind people that Sandra Day O'Connor's resignation is not effective until her successor is confirmed. So there really is no rush since, technically, there is no vacancy to be filled.