As Benjamin Franklin left the final day of deliberation by
the Constitutional Convention in 1787, a citizen supposedly asked him, "Well,
Doctor, what have we got--a Republic or a Monarchy?" Franklin replied, "A
Republic, if you can keep it."
If all goes as planned, in a week or so that Republic will finally escape our grip. When the Senate votes to affirm Samuel Alito to the Supreme Court, the central tenet of our government - the separation of powers -
will take a blow from which it will likely never recover. In its place a de
facto monarchy will solidify and expand, and our Constitution will join the
Geneva Convention as a quaint anachronism. And the Republic we have kept for two hundred years will join its Athenian and Roman predecessors as good ideas whose time has passed.
Melodramatic? I think not. While the Bush administration has shown itself incapable of prosecuting even one war at a time abroad, it has been far more successful in its unprecedented two-front war at home. They have invaded territory Constitutionally granted to the judiciary in a way not seen at least since the Nixon administration. They have mounted the
most direct challenge to Congressional power in the history of our republic. And on each of these fronts, effective resistance has been largely non-existent.
Congress cheers its own subjugation as Austria welcomed the Anschluss.
The doomsday scenario many of us foresaw both
before and just
after the 2004 election now looks as
One aspect of the evisceration of the power of Congress was evident in the farcical Roberts and Alito hearings themselves. The Senate has an explicit Constitutional role in choosing those who sit on the Supreme Court. Once upon a time, both Congress and the Executive branch took that role seriously -- senators asked meaningful questions, nominees actually answered them, and if the answers were unsatisfactory, nominees were rejected. When a radical conservative tried to walk in the front door almost twenty years ago, he was decisively rebuffed. As a result, the honesty of Robert Bork's extremism is but a distant memory. Now Borks in sheep's clothing sneak in the back. The executive demonstrates its disdain for the advice and consent power by turning the hearings into an addendum to The Brothers Karamazov* in which it is those who loudly proclaim their religiosity act as if God is dead, so that all is permitted.
Even Robert Bork now understands the new rules of the game. When Wolf Blitzer asked Bork about the way Alito had backed away from his earlier effusive praise of Bork's nomination, Bork said that Alito handled
himself "very well." When Blitzer asked him why he thought so, Bork
said, The object nowadays is to get confirmed. People will say pretty much -- or avoid saying pretty much in order to get confirmed."
Now that John Roberts has completed his bait and switch, recall
told Oregon Senator Ron Wyden after Roberts' nomination that in cases dealing with end-of-life care, he would "start with the supposition that one has the right to be left alone," and that "he would look closely at the legislative history of federal laws and would be careful not to strip states of powers they traditionally have held -- such as regulating the practice of medicine." This week Roberts
dissented from the Supreme Court opinion upholding exactly that position. I'm sure Robert Bork is proud.
How much value do these episodes suggest this administration places on Senator Wyden's advice and consent? How seriously does anyone in power take the tripe they parrot about original intent and the evil of liberal
The Founding Fathers thought they constructed a brilliant and versatile system for counteracting the flaws of the mortals who populate our government. But as Sandy Levinson points out in an insightful piece at
Balkinization, a fatal flaw is now surfacing. Our system is ingenious in the way it counteracts both individual and institutional biases. But what it does not do is protect us against corruption due to political parties.
In the 51st Federalist Paper, James Madison famously wrote, "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." The mechanism of American "separation of powers" is often said to derive from Madison's insight. That is, it is not only that Congress, the Executive, and the Judiciary have quite different formal powers; it is also ostensibly true that members of each branch are psychologically disposed to work zealously to preserve the institutional prerogatives of the branch with which they are connected and will therefore be vigilant in trying to prevent incursions from the other branches.
If Madison were correct, then one would predict that Alito's nomination stood almost no chance. There is no reason for any member of what might be termed a "Madisonian" Congress to vote for Alito. Instead, senators would be looking for someone who had demonstrated great respect for the Congress and seemed likely to take Congress's side in any potential struggles with the White House. This is, of course, not happening.
At this point I cannot divine whether Senate Republicans are
true believers willfully destroying their own institution, or if they are just children following the pied piper out of Hamelin. But I am convinced that the Alito/Roberts/Scalia/Thomas court will prove to be more hostile to
Congressional power than any Supreme Court in seventy years. If these Congressional "public servants" see their roles as anything other than an opportunity for graft, they will find that they have sawed off the branch on which they sit well inboard of their perch. In any event, the result will be the destruction of a structure that has stood for two centuries.
The fact that Alito had a team of Republican coaches from
Article I (including at least Senator
Lindsey Graham) and
Article II (a large team from the Justice
Department) to ensure his rise to the pinnacle of the world of Article III
makes clear that party now trumps all. I am not sure who is more at fault for
what is about to happen: the Democratic Senators who meekly oppose the
interring of their institution and fail, or the Republicans who conspire to
strip their own power and succeed.
Now the last best hope for our Republic is a filibuster. I believe the stakes are really that high, and that, failing such drama, two centuries of Constitutional government will be snuffed out.
Incredibly, the oxymoronic Democratic leadership in Washington appears intent on letting the neocons complete their revolution. Stalwart milquetoasts like Diane Feinstein say they will vote against Alito, but caution against using the only effective weapon left to them. They fear triggering a Constitutional crisis that is already virtually over. Their "dry powder" policy has played right into the monarchist strategy of death by a thousand cuts. Hundreds of years from now, archaeologists will open a bunker and discover the encircled remains of the Democratic leadership, as desiccated as their powder.
Make no mistake about what is at stake here. The Supreme Court is already dangerously deferential to executive power. Only days ago, the Court let stand the conviction of a protester who committed the crime of holding a "no war for oil" sign at a Bush event held on public property in South Carolina in 2002. The Department of Justice has begun demanding that Google and other internet search providers turn over search records. Conservatives are paying students to expose "radical" college professors. Safeguarding our rights under the First Amendment may be the most sacred of the traditional duties of the Supreme Court. If Samuel Alito joins his deferential brethren on the Court, that role will recede into history. In its place will likely come a new Sedition Act, and in a year or three the courts will cheerfully approve the banning of websites like this one for our protection.
The NSA domestic spying scandal exposes the overthrow of the judiciary by this Administration. Bush's naked attempt to eviscerate the ban on torture even as it nominally accepted it is a takeover of the legislative function. Nobody -- not even Richard Nixon – has ever asserted the right to usurp both of those powers to the executive until now. They are close to achieving their dream – a government consisting of one branch and two fig leaves.
What Bush wants, and Alito is happy to deliver, is an absolute monarchy -- exactly what the Founding Fathers fought hardest to avoid. What these duplicitous evil men do sub rosa is completely at odds with the form of government Jefferson, Madison and Hamilton created to prevent such accumulation of power. And these traitors to the very causes they espouse are happy to argue legal fiction on a truly astounding scale in order to get it.
This mind-boggling sophistry is part of the real war now being fought: Caesar is marching on Rome, and the Republic is under siege. If Alito is confirmed, the emperor-in-waiting will have another monarchist dismantling the "least political branch" from within, and the closed coffin of our Republic will want for one less nail.