Analysis of Day Four of Alito Hearings

Douglas Kmiec, chair and professor of constitutional law at Pepperdine University in Malibu, Calif., and Jeffrey Rosen, professor at George Washington University Law School and legal affairs editor at The New Republic, examine the final day of testimony from Supreme Court nominee Samuel Alito during his confirmation hearings.

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ROBERT SIEGEL, host:

A couple of minutes now on an idea that Judge Alito has advocated and that some Senate Democrats say they find very troubling; it's called the theory of the unitary executive. And we have our two law professors here, once again, Jeffrey Rosen of George Washington and Douglas Kmiec of Pepperdine.

Welcome back, both of you.

Professor JEFFREY ROSEN (George Washington University Law School): Good to be here.

SIEGEL: And first--Jeffrey Rosen, you go first. What is unitary executive theory?

Prof. ROSEN: There are two parts of the theory, and one is much more controversial than the other. The part that Judge Alito has explicitly endorsed says that since the president is elected by all the people, he should be able to control the executive branch. He should be able to fire executive officials the way George Washington fired his Cabinet officers and the president wasn't allowed to fire the independent counsel. That's what Judge Alito has endorsed in a speech to the Federalist Society.

The much more controversial part of the theory--advanced by John Yoo, a law professor at Berkeley who wrote the famous memos that seem to justify the use of torture in the Geneva Conventions--says that the president can ignore congressional wishes when it comes to banning torture, can declare war without explicit congressional authorization and broadly has tremendous power during wartime to do whatever he thinks under Article II of the Constitution. Judge Alito has not explicitly endorsed that, and Democrats were pressing him on that very firmly.

SIEGEL: But, Douglas Kmiec, does an advocate of a unitary executive theory think that the Securities and Exchange Commission or the Federal Reserve, if they've got to be in one branch or the other, are really part of the executive branch of government?

Professor DOUGLAS KMIEC (Pepperdine University Law School): No, the unitary executive theory--and I think Jeffrey has stated it well--is one that says, with regard to fully executive agencies, Cabinet agencies, executive officers, the president, who's going to be held politically accountable for their decisions, he has to have the ability to remove them and to supervise them and to give them direction as to how the laws should be faithfully executed.

It's well settled Judge Alito has acknowledged as much, that in the precedents of the court, Humphries Executor and so forth, that independent agencies exist--these are agencies where the officials are usually a commission. And while they're appointed by the president, they're expected to exercise independent judgment and they're not fully removable except for cause.

Judge Alito said several times that the Supreme Court precedent on this--that he was fully comfortable with it, and I don't think there's any suggestion that his view of the unitary executive would contradict it.

SIEGEL: So, Jeffrey Rosen, you seem to be in agreement here, that what Judge Alito has said, he endorses publicly, doesn't amount to a vast expansion of executive branch power.

Prof. ROSEN: Well, it's a question of reading the tea leaves. No one would care about this question if it was just firing lower-level executive officials. People want to know if the domestic surveillance program is constitutional. There was a dramatic moment in the hearing where Senator Biden said to Alito, `Have you read Professor Yoo's book?'--just like he did trying to pin down Richard Epstein's book with Clarence Thomas. I don't know if he waved it in the air or not, but there it was. And Alito said, `No, I have not read that book, and I'm not sure that I would go so far as Professor Yoo.' But it's possible to read Judge Alito's other responses, statements that he takes a broader view of executive power, for example, than John Roberts did and, therefore, Democrats are not mollified on this question.

SIEGEL: OK. Well, rather than have a unitary subject conversation here, let's move on to your general appraisals of what we've heard over the past couple of days from Judge Alito. Douglas Kmiec, now that the American people have been able, if they chose, to listen to Judge Alito talk and respond to questions, what's the impression you think they should come away with?

Prof. KMIEC: Well, I think they came away with `This is a person who was not born to privilege, who by great effort and preparation has amassed great intelligence and wisdom and judgment.' I think in many ways, he was more forthcoming than John Roberts, who had a very pleasant smile and was very charming, but said very often that he would not discuss matters. Judge Alito was careful not to give outcomes, not to prejudge matters, but he was very expansive in his description of court doctrine, and insofar as he was describing it, he was giving us some sense of both his ability and things that he fully affirmed. For example, he was very careful to say that the president is not above the law, and that when he was describing Justice O'Connor's decision in the Hamdi case, for example, he was describing it as one of those places where Justice O'Connor had given life to the principle that the Constitution applies both in times of war and peace.

SIEGEL: Jeffrey Rosen, your sense. What should people come away with about Samuel Alito from what they've heard?

Prof. ROSEN: I think the hearings were very revealing. I don't agree with those who say that we learned little from them. And I think the contrast with John Roberts is very interesting. I saw, in a whole number of areas, Judge Alito seeming more like Justice Scalia and Thomas than John Roberts, who seemed more like O'Connor and Rehnquist.

On the question of judicial philosophy--Alito said that he was a textualist, an originalist, and seemed to allow for less flexibility and evolution than Judge Roberts did. On Roe v. Wade, of course, he was less forthcoming in saying that--he wouldn't say that Roe was a settled precedent, and instead said that precedent is not an inexorable command.

On the question of federalism, Judge Roberts was far more deferential to Congress, whereas Judge Alito seemed to say that judges could second-guess congressional findings. And on the question of executive power, Judge Roberts seemed to be more willing to check the executive and he's never expressed any support for this unitary executive theory. So in all these respects, I think that Democrats may, indeed, be a little bit more troubled by Judge Alito than they were by John Roberts.

SIEGEL: So assuming that he's confirmed, you would see a group of three emerging on the Supreme Court, based on what you've heard so far, of Scalia, Thomas and Alito on the right of the court?

Prof. ROSEN: It's a complicated question. Balances fissure in unexpected ways, but speaking very broadly, Judge Alito seems more like a formalist and an originalist and a strict constructionist than John Roberts did.

SIEGEL: Douglas Kmiec, if you can answer that in 20 seconds, you may.

Prof. KMIEC: Well, the 20 seconds would be this. I think Judge Alito has indicated that he treats cases on an individual basis, that he's largely wary of grand theories and that he is particularly mindful of precedent, and with respect to congressional power, that it comes with a presumption of constitutionality that he takes very seriously. In all of these ways, I think he has more in common with Justice O'Connor than not.

SIEGEL: That's Douglas Kmiec of Pepperdine University Law School, and Jeffrey Rosen of George Washington University Law School and The New Republic. Thanks to both of you for all your work this week.

Prof. ROSEN: Thanks for having us.

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