Re: Scooter, Sam and Executive Power: Some Different Takes

November 4, 2005

[[[audio]]] [[[audio pt2]]]

Re: Scooter, Sam and Executive Power: Some Different Takes
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Let me start with (the large number of) four preliminary points before getting down to cases with regard to Lewis Libby, Samuel Alito, and executive power.

The first preliminary point is, de facto, insufferable braggadocio. A close friend recently said he was concerned for me over the years, because I was saying things that he believed would cause me to lose credibility, to be looked at as some wild eyed nut. But now, he said, my long stated views are being vindicated. It is now common parlance that Bush and company are dishonest, malevolent, incompetent, uncaring of history or of people, substantive failures, generally rotten, and so forth. It pleased my friend that no longer could people look on this writer as odd man out, as some kind of nutbag, and that instead the views often expressed by this author had become mainstream ideas.

On Monday last, Paul Krugman wrote that "some of us" had "realized early on that this administration was cynical, dishonest and incompetent, but spent a long time unable to get others to see the obvious." You can observe a lot if you look, Yogi Berra famously said, but most people long cared neither to look nor to observe. They were too filled instead with the pervasive desire to believe -- the same pervasive desire that helped create Nazi Germany, Stalinist Russia, and other tyrannies.

Preliminary point number two relates to what Pat Fitzgerald said last Friday. Above all else, he stressed, is the need for truth. Without truth, one cannot get to the bottom of things. Without truth the judicial system is only a broken promise. The need for honesty and truth, the view that they are the most important of all virtues, has been stressed many times here and in books this author has written. The view has been stressed to the point where even this writer has wondered whether he is overdoing it -- and was relieved to be able to note, in a preface to Volume III of a quartet, that even if harping on the need for truth made him odd man out in the 20th and 21st centuries, the need for trustworthiness was regarded as a linchpin by the educated in the 17th Century, was regarded then as a key aspect of morality, while "‘[l]ying was seen as incompatible with a civilized society.’"

It is, I think, a shame, even if totally understandable given the context in which he made his remarks, that Fitzgerald confined his remarks to the need for truth in our grand jury system and said the need for truth is especially important in national security matters. His point about the need for truth has much broader application than in grand juries or national security alone. But maybe now, with the country seeing the lies, malevolence and horrible conduct that have pervaded our system, and their terrible results, the way will be open to greater concern for truth on a wider basis. Unhappily, however, one should not hold one’s breath. The same opportunity existed fruitlessly after Johnson, after Nixon, after Clinton, after the extensively fraud-induced stock market debacle of the early 2000s, but was never seized. Dishonesty always would out.

The third point relates to the second. It is, perhaps, not entirely a coincidence that the prosecutor who brought the indictment comes from a working class family (his father was a doorman in New York City), while the indictee is the son of an investment banker. As is said by persons like Alfred Lubrano who have studied the subject, the working class has historically placed a lot more emphasis on honesty than the white collar class (whose motto might be "whatever works"). I’ll not get into the reasons for this discrepancy here, but what Lubrano says seems very right to me. My personal view stems from having come from parents (and an extended family) who started out as working class immigrants and (I much later realized) held many working class views even when they had become middle class economically, and from having lived among the white collar class for at least 45 years. That an immigrant working class Fitzgerald would believe in truth while a Libby (and a Bush and a Cheney, etc.) lives by lies is not a surprise to those who are familiar with class differences.

This is not to say that all working class people are truthful and all white collar class people lie. Nor does one overlook the fact that Fitzgerald is a prosecutor. By the nature of their job, and regardless of the class from which they come (which historically has often been the working class, however, partly because fancy law firms were long closed to Jews, Irish, Italians, etc.), prosecutors must place a great value on truth in the grand jury process. But while the point is not a universal, and there are additional reasons for it with regard to prosecutors, still it is a by and large truth that the working class places a higher value on speaking truthfully than the white collar class.

The final preliminary point is this: Am I the only person who is struck by the fact that, if Alito is confirmed, the Supreme Court will have six alumni of the Harvard Law School and two from Yale, with "lowly" Northwestern having one? (Ruth Bader Ginsberg attended Harvard for two years, but then transferred to Columbia because her husband (who decades later was instrumental in getting her appointed to the Supreme Court) joined a New York City law firm, the now famous Weil, Gotshal & Manges.) That is to say, am I the only one who is struck by the fact that the high court has become the plaything of a tiny number of the most "elite" schools. Not even other law schools with pretensions to eliteness are represented: there is nobody from Chicago, nobody from Stanford or Penn or Virginia, etc., etc. And as for having anyone from a so-called non-elite school -- like SMU, for example -- well, you can just forget it (along with Harriet Miers).

Am I the only person who thinks there is something wrong here? The only one to wonder about the extent to which the "elite" law schools, including ones other than Harvard and Yale, may populate, even dominate, the lower federal court benches too, as well as two of them dominating the Supreme Court? Did everyone who is worthwhile go to the elite schools? How did those schools become so dominant even though the Senate (and the House), while disproportionately comprised of lawyers, and perhaps even ones from "elite" law schools -- I really don’t know -- do contain lots and lots of people from other schools? (The numbers, the proportions, of federal judges from "elite" law schools should be readily obtainable, I note, but candidly I lack the time to investigate this. One does wonder, though.)

You know, law schools generally tell their students -- it is sometimes propaganda, of course -- that a law degree will enable them to get ahead in a whole variety of ways. One thing we were never told in Ann Arbor, however, and one thing that most law students anywhere probably are never told, is that there are large elements of this country that are run by Harvard and Yale (and Princeton, too, though it doesn’t have a law school). When it comes to the east, and the national government, and the highest reaches of the judiciary, you can pretty much forget it if you are a lawyer but not a graduate of Harvard or Yale. So I elaborate my question(s): why is this, isn’t it bad rather than good, and doesn’t it make much of what we are taught a lie?
* * * * *

Let us now get down to cases, in particular the Libby case. I shall assume that the matter is as the indictment charges. As Fitzgerald said, of course, perhaps Libby will be found innocent of the charges at a trial. Or, perhaps more likely, there could be the de facto equivalent of the Scotch verdict of "not proven," i.e., a jury might return a "not guilty" verdict because, while it thinks Libby is guilty, it doesn’t think this beyond a reasonable doubt. Be all this as it may, it shall be assumed here that the charges are true. The grand jury testimony by Libby that Fitzgerald quoted in haec verba near the end of the indictment is a dramatic illustration that this assumption is not crazy. To the contrary.

Assuming the truth of the indictment, the question immediately arises of why did Libby do it? Why did he invent an easily pierced cock and bull story, and why did he think he could get away with it?

His reason for thinking he could get away with it could well be the supposed existence of a reporter’s privilege not to reveal confidential sources, and reporters’ felt duty to protect their sources. One would guess that Libby felt that the big shot reporters whom he told about Valerie Plame – Tim Russert of NBC, Judith Miller of the Times, and Matthew Cooper of Time -- would never talk to the prosecutor because of the presumed reporters’ privilege. He may also have felt -- it would have been logical to feel -- that the prosecutor would never take on these reporters about their invocation of privilege, especially because they were part of large organizations which had the deep pockets necessary to fight the prosecutor in court and totally thwart or at least lengthily delay him -- a scenario that eventually occurred.

But this does not answer all the questions. It tells us only why Libby felt he could get away with his cock and bull story, either completely or, at minimum, for a considerable period of time. But why did he do it in the first place? What motivated him?

The answers here would seem to be fairly obvious. Libby is a sophisticated lawyer, it is said. If I remember correctly, he even headed the Washington office of a significant national law firm for a while. For a guy like him to make up a cock and bull story that could land one in jail for decades, the stakes had to be pretty high, high enough so that he would risk falling on his sword. Sure, if the reporters never talked, he would be home scot free. But if they did ultimately talk, he was in big trouble. Yet he took the risk, because the stakes were high.

The stakes must at least have involved the continuing viability of Dick Cheney. Cheney’s office was trying to smear and discredit Joseph C. Wilson IV, whose report had itself discredited the story about Niger uranium. Lots of people in Cheney’s office were told of and were discussing Valerie Plame Wilson. Cheney himself knew about her early-on in the game. There was also the mysterious airplane conversation about her among Cheney and his staff on the way back from Norfolk -- a discussion whose contents are still publicly undisclosed. Cheney discussed her with Libby. And Cheney supposedly did not know what was going on, did not know that his people were trying to discredit Joseph Wilson by getting at his wife? Gimme a break. It’s not as if Dick Cheney is a nice guy rather than a savage partisan, you know.

So, at minimum, Libby, a guy who has thus far shown the uncompromising if totally misguided loyalty of a Gordon Liddy, was protecting Dick Cheney. He may also have been protecting George Bush. Bush’s name has not yet figured much in the story. Conceivably it never will, unless much more becomes known than is currently public. The man is very good at having others take the fall for what he must have known about and must have approved because he thought it useful -- as the torture debacle proves in spades. Also, Bush and Cheney talk a lot (and Libby too was part of Bush’s close inner circle, was someone to whom Bush often talked). The idea that Bush knew from nothing about all of this stuff that bore on his false justifications for war, and on the effort of Cheney’s people to prevent one of his false justifications from successfully being ripped apart, sounds just a little precious to me. (It may sound that way to some others too, since one lengthy news report took the trouble to interject that, on Friday, October 28, the day he announced the indictments, Fitzgerald had been seen outside the office of the apparently secretive Washington lawyer whom Bush has hired to represent him in this matter, the mysterious James Sharp.)

And then there is also the matter of the 2004 election, a point made by the columnist Tom Oliphant (an unabashed Democratic partisan who nonetheless seems to have hit upon something here). Fitzgerald said -- one did not take him literally, but the point probably is broadly true -- that were it not for Libby’s lies, he would have brought a case not in October 2005, but in October 2004. But a prosecution in September or October 2004 would have been based on the substantive criminal act of outing Valerie Plame Wilson. Remember, we are assuming that Libby -- and nobody else either, I would add -- did not lie, so the prosecution would not have been one for perjury and false statements, but one for the substantive crime of outing a CIA officer. This does not exactly comport with Fitzgerald’s failure to charge a substantive crime against Libby a week ago, but it was what Libby would have had to fear had he not lied (and it could still happen, a point to which we return below).

A prosecution against members of this administration for outing Plame Wilson -- a prosecution that possibly could have been against Cheney too, not just against Libby, and possibly against Rove also, and maybe even against Bush as well -- would have been disastrous for Bush’s reelection campaign. It likely would have spelled defeat for Bush and victory for Kerry. This result, Libby would have figured, had to be avoided at all costs. So he stonewalled by lying to the FBI and to the grand jury. By stonewalling through lying, he would defeat even the possibility of a prosecutorial action, or at least would delay any such possible action until long after the election, as occurred. The election, and the return to office of Bush, Cheney and company, was indeed a stake worth falling on one’s sword for. Moreover, even if Libby were convicted long after the election, if Bush won there was always a possibility of a subsequent corrupt pardon (a la Bill Clinton and a la Reagan’s pardon of Casper Weinberger, who covered up for that Administration, including the first George Bush). (The possibility of such a pardon was hardly diminished when Bush spoke glowingly of Libby after the indictment.)

So, when one asks why Libby lied, what motivated him to make up his cock and bull story, the likely answers do not seem so hard to fathom. Libb(dd)y was covering up for Cheney, may well have been covering up for Bush too (whose small inner circle he was a part of), and very likely was saving the election for Bush, Cheney and company. These were stakes worth the candle. One should note, moreover, that if Libby lied in order to ward off a Kerry victory, this would mean that Bush was elected the first time by the Supreme Court and the second time because of lies and perjury. This would not speak well for our system, would it?
* * * * *

Which leads, of course, to the question of what does Fitzgerald know about the underlying motivations behind what happened.

Fitzgerald repeatedly said at his press conference that he was saying nothing and charging nothing about the underlying crime (or not) of outing Valerie Plame Wilson. Yet, both at his press conference and in his press release he kept stressing that, before charging a crime here (or anywhere, I take it), the prosecutor needs to know why something was done, what was the purpose of it. Of course, one might say -- Fitzgerald would and in effect did say -- that purpose is irrelevant to the charges of false statements and perjury; those acts are in and of themselves culpable because, as Fitzgerald said, they prevent the prosecutor from learning the underlying purpose behind the substantive acts.

Yet surely Fitzgerald knows something, must indeed know quite a bit, about such underlying purpose -- the whole damn country understands the purpose of discrediting Joe Wilson by letting it be known that his wife was a CIA officer and was behind his trip (a point I shall return to later) -- and as a citizen Fitzgerald knows that much. Does he also know a lot more in his role as a prosecutor (though he refused to say)? His people have conducted God knows how many interviews (including interviews even with the vice president and president), and have gotten documents. Did every administration interviewee stonewall? Did every one of them lie? Did nobody concede that they had discussed how to discredit Joseph Wilson’s report, and Joseph Wilson himself, and that one way this was attempted was by trying to discredit Joe Wilson by outing his wife? Did no one concede they were mad as hell at the CIA because of its refusal to give unqualified support to the Administration’s phony reasons for war, and were trying to discredit the CIA? A universal cover-up of this nature is an idea a little hard to swallow.

So, unless there were some such universal cover-up, Fitzgerald must know a good deal, in his role as a prosecutor, about what the underlying purpose of the outing was, what its basic motivation was. And now that Libb(dd)y has been indicted, the pressure will be on him to cut a deal to shorten his sentence, and possibly to avoid a second indictment on the underlying substantive charge, by revealing more. There will also be pressure on other Administration figures who are involved to cut a deal in order to avoid the possibility that they may be indicted (or listed as unindicted co-conspirators). (One thinks of people like Rove, conceivably David Addington, who is known to be ferociously savage to those who oppose his view, or conceivably John Hannah.) All of this remains in the bosom of the future, of course. But if Fitzgerald was telling the truth about the need to learn underlying purposes during an investigation -- and so far he has given the impression of being one of the few involved in high level Washington matters who does not prevaricate or lie -- then there is bound to be more to come. As the reporters say, stay tuned.
* * * * *

There are several other, often unmentioned or unplumbed points of great interest, and sometimes of potential great significance.

• Reporters have expressed fear that forcing news people to testify will turn the media into an investigative arm of the government. In this instance, however, something quite different was going on. The government was turning the media into an attack arm of the government. Libby and others were using the media to try to destroy the credibility of Joseph C. Wilson IV and to get back at, and vitiate the credibility of, the CIA. Robert Novak, who first identified Valerie Plame Wilson, went along with this plot. So did Judith Miller in the more limited sense that she protected Libby by referring to him as (merely) a "former Hill staffer" -- can you believe that crapola? -- she might just as well have identified him as a "former law student." Of course, Miller was a government shill from the get-go in the entire Iraq matter and a subsequent culpable player in it, spreading the Bushwa propaganda about WMDs, thereby being a major actor in getting us into war, being "Ms. Run Amok" at The Times, and not cooperating with the prosecutor, her own newspaper, or the reporters who wrote about her for The Times a few weeks ago. The Times itself, and one suspects Arthur Sulzberger, acted badly in much of this, and has been deservedly catching its lunch from its colleagues in the press for its many forms of malconduct (to coin a word). Of course, before The Times itself, and Miller too, wrote huge pieces about the matter recently, the news media treated Miller and the paper as heroes for standing up for the reporters’ privilege. Lionizing them, the media ignored the roles they played in taking us into this misbegotten war. But when The Times and Miller put pen to paper (so to speak), their colleagues suddenly turned on them savagely. Nice people, eh? Or maybe there was a dam waiting to burst, and the stories by The Times and Miller acted as Katrina to the levees. There have been indications that The Times’ newsroom had been simmering with publicly unexpressed anger for a long time.

The Times malperformance -- especially coming on top of its other recent gaffes (e.g., Jayson Blair) -- is to be deplored. The paper is a national treasure. Hosts of us depend on it to learn about so many things that we otherwise might know relatively little about. For that newspaper to sully itself with horrible mistake after mistake, and for it even to be unable to get little things right, as evidenced in its daily corrections column, is a serious matter. For this threatens the paper’s standing and conceptions of its integrity. Yes, I know that too many of its personnel are egotistical jerks who, like other personnel of major media, think they know everything and that other people are ignoramuses. ("Of course I know everything, I’m a Timesman (or woman), aren’t I?" Or "I work for The Post, don’t I?") But the fact remains that The Times is a major national resource -- one that is being squandered under its present publisher, Arthur Sulzberger. Maybe it’s time for him to go. (Perhaps he could cohabit with Larry Summers on Elba.) This may be something that people connected with the paper should think about.

• The indictment says that Libby’s lawyer was present at two meetings in which Libby was questioned by and lied to the FBI. Did Libby’s lawyer know the truth, sit there quietly while listening to Libby lie, and never subsequently insure that Libby recanted his lies? This is hard to believe because, if it were true, the lawyer could be severely punished, conceivably even disbarred.

Or did the lawyer not know the truth? -- had Libby lied to him too, or was the lawyer ignorant of the truth because he had not even prepared Libby for the meeting with the FBI, had not demanded that Libby show him relevant documents, and did not know before the interview what Libby was going to say? If the lawyer had not prepared Libby, had not determined what he was going to say and questioned him about it, had not demanded to see relevant documents, then he was derelict in his performance, I would say. (Claims that executive privilege make some or all of this impossible for the lawyer are just so much cant in my opinion, especially since the lawyer could be made to agree not to disclose classified information.)

And if the lawyer, for whatever reason, did not know that Libby had lied, what did he do when he found this out -- as he must have because the prosecutor almost certainly told him what the charges would be before the indictment was brought, and doubtlessly gave Libby one or more last chances to clear the record. When he found it out, did the lawyer advise Libby to come clean? Did he, rather, in effect say, "Okay Scooter, whatever you want, we’ll defend it one way or another, regardless of whether it’s true or false?"

Several of these possible scenarios involve malpractice and dereliction of duty, especially since a lawyer who investigated and demanded the truth from the client could have headed off a lot of trouble.

• Another curious matter is, why did Libby grant waivers of confidentiality -- especially the specific waiver to Judith Miller, which was not the result of any White House edict -- to reporters whose testimony would sink him? Did he think they would lie for him? I gather that Judith Miller may have thought so. Did he honestly think he had told them something quite different from what they said he told them, and quite different from what the facts show he knew due to numerous prior conversations about Plame Wilson? Did he figure the jig was up anyway by the time he gave Miller specific permission to testify, and did he figure what the hell, the election is long past and we’ve won? Whatever the answer may be, the matter is curious.

• Here is another curious point. Everyone now knows, or at least presumes, that Valerie Plame Wilson was outed for the purpose of discrediting Joseph Wilson. But why would Joe Wilson and his report be discredited because his trip to Niger might have been the idea of his wife, who is a member of the CIA? Did Cheney and company assume that the very fact that Valerie Wilson was a member of the CIA would indicate that Joseph Wilson’s report was biased, and that this is how the matter would be seen by the public? Usually, however, one does not necessarily judge a report by the employment of its writer’s spouse, but by the persuasiveness of the facts and theories it presents. (Otherwise, Jim Carville and Mary Matalin couldn’t be husband and wife.) Of course, lots of times spouses agree on matters, so maybe Cheney and company figured that Joseph Wilson’s report would inevitably reflect, and after an outing would be thought by public to reflect, the CIA line (which would be presumed to be Valerie Wilson’s line too), would be thought a CIA put-up job. But Cheney asked the CIA to investigate the Niger uranium business, and he had been trying to forcibly cram down the CIA’s throat, against its wishes, intelligence views that supported going to war. In the circumstances, did he think the CIA would send an investigator who opposed its views? Did he figure the public wouldn’t know he had requested the CIA to investigate, and would therefore swallow the idea that Joseph Wilson was biased and his report a put-up job, while the administration itself was objective?

Or did none of this matter? Was it simply a case in which Cheney and company were so mad at the CIA and at Joe Wilson that they were going to throw anything they thought useful in hopes of discrediting Wilson’s report, regardless of whether what they threw was mud. If the outing was due to such anger, it reminds me of something Eisenhower said at Gettysburg. Eisenhower had a home there, which was visited after WWII by Field Marshal Montgomery. Eisenhower showed him the battlefield, expressing incredulity that Lee could have been so foolish as to launch Pickett’s charge against the powerful Union position at which it was directed. Eisenhower said that, to do this, Lee must have been so angry at the other guy that he wanted to throw a piano at him. Maybe that’s how it was with Cheney, in a cause no better than Lee’s.
* * * * *

Now let me get down to cases in a different but inevitably intimately related problem, the nomination of Sam Alito to be a Justice of the Supreme Court. Alito may be a very good candidate, albeit people think a very conservative one. He is smart, accomplished, etc. But it seems there are also some questions about his candidacy. He possibly could vote to overturn Roe v. Wade. He apparently has issued some opinions that are antagonistic to civil rights and to the powerless of society. So conceivably he could be bad for societal and human progress. He may not be friendly to broad Congressional power to remedy ills of society, a problem much on the minds of Senators.

And then there is another possible problem, one on which I’ve seen only a relatively small amount of discussion in the media. Where does Alito stand on executive power? Is he for more of it at the expense of Congress? Or is he for more Congressional power at the expense of the Executive?

It has been said here before that executive power is one of the questions of the future, a question pregnant with consequences, maybe disastrous consequences, for America. As said before here and elsewhere, this Administration seeks to expand executive power to an extent that would be exceptionally dangerous, both at home and abroad. Does the President, in the name (or under the pretext) of national security, have the power to fight wars as big as he wants, for as long as he wants, any time he wants, against whomever he wants, without declarations or very specific authorizations of war from Congress. Can the President withhold from Congress crucial documents bearing on vital matters? Can he declare previously available documents to be unavailable? Can he decree that people can be tortured? Can he decree that people shall be held in jail for the rest of their lives without trial? To this Administration the answer to these and related questions is always yes. These people are dangerous to our liberties, as was said here about a year and a half ago (when my aforementioned close friend might have worried that saying so might have marked this author as a non-credible nut job).

The irony is, of course, that this Administration claims to favor the constitutional theory of so-called originalism. The truth is, however, that these people are anything but originalists. The originals -- the founding fathers -- were deadly afraid of too powerful an executive, the more so having seen George III. They set up a government in which the legislature was to be supreme, not the executive. The drive for executive power launched by this administration -- following, to be sure, in the presidential footsteps of many of its predecessors, Democrat and Republican alike and including Johnson and Nixon -- is not an originalist idea. It has far more in common with the drive to executive power of the German National Socialists, the Italian Fascists, the Russian Communists, the two bit dictators of Africa, and the despotic tyrants of the Arab middle east, than with the views of America’s founding fathers.

And this Administration continues marching forward in its drive for executive supremacy. Secrecy is vital to a powerful executive -- the executive may not be able to do what it wants, may not be able to run torture camps abroad, for example -- if relevant matters are not kept secret and thus free of potentially withering public opinion and even possible Congressional action. Harriet Miers, though in fact savaged unto withdrawal by Bush’s conservative friends, gave as her reason the need to keep executive documents secret. Libby was replaced as Cheney’s counsel by a right wing nut named David Addington, who believes in unlimited Presidential power, has been for war, torture and secrecy, and may be more evil and dangerous than even John Yoo was.

So there are lots of areas in which the Senate should learn Sam Alito’s views before approving him as a Justice. From abortion, to Congressional power, to torture and secrecy his views may, and in some cases, like abortion, almost certainly will have dispositive effect on the Supreme Court.

But, it is objected, Senators cannot question a nominee about his political views, cannot ask him what he would do in specific cases, cannot do anything other than determine his legal competence and his integrity. This, however, is so much bushwa, and only bushwa. It is a recent invention, made as a result of the failure of the Bork nomination, to try to avoid the failure of conservative to reactionary Republican nominees (and Democratic ones too?) by preventing the Senate and the country from learning of possible right wing, sometimes nutbag views. What better way to avoid defeat due to right wing nut job views than to ordain that the views cannot be plumbed. And this latter day innovation designed to place conservatives and/or reactionaries like Thomas and Roberts on the Supreme Court, and to avoid the defeat that would befall them if their views were plumbed, has previously been readily accepted by Democrats, who have meekly fallen into line.

Let there be no mistake about it. Defeat and rejection of Supreme Court nominees because of the Senate’s disagreement with their views is as old as the Republic, going back to its earliest days. This is plumbed in chapter five of Laurence Tribe’s 1985 book called God Save This Honorable Court. (Yes, that book, the one in which Tribe, or more likely student ghostwriters, plagiarized from Henry Abraham’s prior work. Of course, plagiarism is not the same as incorrect.) Chapter five makes clear that on many occasions the Senate has forced the withdrawal of or has rejected a candidate because of his views. Bork -- rejected after and some think in major part because of, Tribe’s book -- was only the latest in a long line.

This, of course, raises the question of what questions Senators can ask a nominee in order to determine his or her views. As near as I can tell, Tribe’s book does not bear on what questions have been asked in the past, although he seems to make clear in chapter six that he would ask broadly searching ones. And it would seem to me -- I know of no reason not to think -- that any questions bearing on reasons, theories and facts relating to a subject are fair ground to be asked in order to find out a nominee’s views. This is no less true when the potential stakes are as high as with Alito’s nomination. It is also no less true when one realizes that, despite all the cant about the impropriety of asking about cases, nominees, as Roberts did, seem not to stickle about discussing specific cases, at least not prior specific cases, when they think this is to their advantage.

You know, the fact that a nominee has to get down to cases (to make a pun) does not mean that he will be obligated to adhere to what he tells Congress when an actual case comes along. If a litigant can persuade him to a different view, he will be free to adopt it. Indeed, the nominee’s statements to the Senate will aid a future litigant because he will know what he has to face and overcome. If judges are as open to logic and reason which undermine their prior views as they and their supporting lawyers like to claim -- and if they are not open to contrary logic and reasons, then the judicial system is pretending falsely -- then the argument that answering specific questions in a hearing constitutes prejudgment of future cases is in major part baloney. If the claim of being open to reason has truth, then to answer Senators’ questions is no more a prejudgment of future cases than rendering a decision on an issue in one case is prejudgment of the next case on the issue. Indeed it is less of a prejudgment than is an opinion, because a statement to the Senate need not be followed if the judge becomes persuaded to a different view in a future actual case, whereas a statement in and governing a judicial opinion is binding in the next case as a matter of precedent. Statements to the Senate will simply mean that a future litigant won’t be blindsided, will know what he or she needs to respond to.

Asking judicial nominees questions about present and potential future cases is, moreover, something that has been done. Thus, it has recently been reported that in private meetings Senator Durbin asked Alito about a previous abortion case that Alito participated in and Senator Cornyn asked Alito about a prior church-state case that Cornyn himself had argued and lost in the Supreme Court. So Senators may be doing privately what publicly has been pretended to be impermissible.

I also note that, in a recent discussion on the subject of asking questions of Supreme Court nominees at the Boston Inn of Court, one of the scores of persons in attendance said from the floor that panels of lawyers that assess nominees for local state court judgeships often ask them about specific "hypos", i.e., about specific hypothetical cases that are put to them. To the extent that this is done in Massachusetts and elsewhere, it is further support for the idea of asking Supreme Court nominees to likewise answer specific questions.

Perhaps most importantly of all, in a recent (October 24th) letter to Harriet Miers while she was still a nominee, Senator Specter told her she would be asked to answer very searching, very specific questions about executive power, questions which he then set forth. As readers of this blog may remember, my respect for Specter is not unlimited. But in the October 24th letter he and his staff did a capital job (to make a bad pun (or perhaps a pun about badness).) The questions they put were terrific, and included ones relating to the length of time detainees can be held, the power to detain them on foreign soil as contrasted with the power of habeas corpus and with the jurisdiction of federal courts in such instances, whether Congress unconstitutionally delegated its war-deciding power to the President when it authorized the use of force in Iraq, whether the President as commander-in-chief has the constitutional authority to take us to war, whether the Korean and Viet Nam wars required a congressional declaration of war, and when an international agreement requires the consent of the Senate under the treaty clause. The questions Specter told Miers he wanted her to answer are so specific and detailed, and such an excellent example of the kinds of questions that Senators should ask a Supreme Court nominee, that his letter of October 24th is appended below to this blog.

In addition to appending Specter’s questions to Miers, it may be very useful to set forth several other questions that exemplify the types of questions that Senators should ask. Before I do so, however, let me first say that it would be helpful if, contrary to blowhard Senatorial norms, the questions were kept as short as possible, so as to provide clarity for the media and the people (although this may not always be possible if hypothetical cases are put to the nominee). Having questions written out in advance would be helpful in keeping them short. Here are some examples of a few of the possible additional questions for Alito:

1. A case comes before you asking that Roe v. Wade be overturned. Will you vote to overturn it or will you uphold it? What will be the reasons for your vote?

2. Without a Congressional declaration of war or a specific detailed Congressional authorization directing the armed forces to be used against Syria, the President sends ten divisions to attack Syria on the ground that this is a preventive war because Syria intends to attack American forces in the Mideast. An American soldier ordered to participate in fighting claims that the President’s war is unconstitutional and he therefore cannot lawfully be ordered to fight. Will you uphold his claim? Give the reasons for your vote.

3. The same hypothetical as in 2 above, except that, instead of attacking Syria because he says it intends to attack American forces, the President intends to attack Iran because he says it is assisting terrorists.

4. After two months of joint hearings on the subject, Congress makes findings saying that so called "elite" private universities have structured their admissions programs in ways that automatically tend to exclude most minority youngsters from working class backgrounds, especially due to the schools’ extensive reliance on the SATs. In the law incorporating these findings, Congress orders that private universities cease using the SATs (which automatically would mean a more costly, labor intensive admissions process). In enacting its law, Congress states that it is basing the statute on Section 5 of the 14th Amendment, which allows it to enact laws to enforce the amendment. A private university sues, saying that Section 5 does not give Congress the power to do what it did. How will you rule? What are your reasons?

5. The same question as number 4, except that Congress relies on its spending power, and the university is receiving 300 million dollars per year in federal funds.

6. Congress enacts a law making it a crime to knowingly carry any semiautomatic or automatic weapon in or within 1,000 yards of any grammar school, high school or college. When enacting the law, Congress finds that such weapons pose a danger of mass deaths, as evidenced by incidents from the Texas Tower case of the 1960s to the Columbine case. A person convicted under this law claims the law is unconstitutional because, under the constitution, the carrying of weapons in or near a school is a matter for state power, with Congress having no constitutional authority over it. What is your ruling? What are the reasons for your ruling?

7. A large company enters bankruptcy proceedings, in which it is allowed to reorganize and to wipe out two-thirds of the pension payments owed to tens of thousands of present retirees, but which does not affect multimillion dollar golden parachutes given to high executives shortly before the bankruptcy. A retiree whose pension was diminished sues, claiming the bankruptcy proceedings have wiped out the greater part of a vested contractual right he possessed after 30 years of working at the company, and has left him and his wife destitute because his remaining pension and social security payments are insufficient to support them, especially in view of their high medical bills. The company and the federal government say it is constitutionally permissible to wipe out two-thirds of the retiree’s pension in bankruptcy proceedings. Which way will you rule? What are your reasons?

8. A state declares that, because of money problems, it will cut its pension payments to former employees by two-thirds. The former employees, being under a state pension program, receive no Social Security. A former employee claims the state has breached a vested contractual right for which he worked for 20 years, and has left him destitute. The state says it cannot be sued by the employee because it has sovereign immunity under the eleventh amendment. Which way will you rule? What are your reasons?

9. A state sets aside a pool of three billion dollars for stem cell research by private companies in the hope that this will lead to cures for numerous death dealing diseases. The Federal Department of Education then cuts off 100 million dollars of aid that it gives to medical research facilities at the state university hospital, saying that this 100 million dollars in aid is discretionary, and that DOE is exercising such discretion to cut off the 100 million dollars because the administration is against stem cell research. How will you rule? What are your reasons?

10. A state decides on the basis of very strong evidence that hashish should be made available to people in the state who suffer from a very painful disease, because hashish eliminates their pain. The federal government says the state cannot do this because hashish is banned by the FDA. How will you rule? What are your reasons?

You don’t have to be too smart to realize that most or all of these questions are to some degree, sometimes extensively, drawn from real life occurrences or potential real life occurrences. Were these and other questions of vital importance to present-day and future America to be asked of Alito or any other nominee, were concrete answers and reasons to be demanded upon pain of an adverse vote on confirmation, and were Senators to engage the nominee in serious discussions about the answers and reasons instead of engaging in the horrendously time-wasting, blowhard bushwa that too often permeates Senate hearings, the public and the Senate would have a much better idea of whether Alito (or anyone else) should be confirmed as a Justice of the Supreme Court, where he can deeply affect this country for the next 25 years or more.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Text of Letter From Specter to Miers

- By The Associated Press

Wednesday, October 26, 2005

(10-26) 14:23 PDT , (AP) --

Text of an Oct. 24 letter from Senate Judiciary Committee Chairman Arlen Specter, R-Pa., to Supreme Court nominee Harriet Miers:

In advance of the Judiciary Committee hearings on the nomination of Chief Justice Roberts, I wrote to him by letters dated Aug. 8 and Aug. 23, 2005, to identify some of the issues I intended to ask. In our meeting on Oct. 17, I gave you copies of those letters since I intend to discuss those topics in your hearing and also suggested that you would have, in effect, a "roadmap" as to subjects of inquiry by other senators and myself from the questions posed to Chief Justice Roberts.

I believe it is appropriate and useful to add to the list of prospective issues the subject of executive authority, especially in light of your close relationship with the president and the key positions you have held in the White House.

On June 15, 2005, the Judiciary Committee held a hearing on the Guantanamo Bay detention process and considered in some detail the three decisions the Supreme Court of the United States handed down June 24, 2004 captioned: Rasul v. Bush, 124 S. Ct. 2686 (2004); Hamdi v. Rumsfeld , 542 U.S. 507 (2004) and Rumsfeld v. Padilla, 542 U.S. 426 (2004).

The vast majority of detainees in Guantanamo labeled "enemy combatants" are purportedly kept in custody solely for the purpose of detainment and not for punishment. The administration asserts that they are detained at the facility to prevent them from returning to the battlefield and to provide the government an opportunity to interrogate them to gather intelligence.

1. Are there any limitations as to how long detainees may be held for the purposes identified by the government?

In Rasul v. Bush, by a 6-3 majority, the court held that United States courts do have jurisdiction under the habeas corpus statute to consider challenges to the legality of foreign nationals captured abroad and incarcerated in Guantanamo Bay.

2. What jurisprudential considerations are involved on the constitutional authority of the president to detain aliens outside United States borders contrasted with the constitutional authority of federal courts to grant habeas corpus?

3. How would you evaluate the jurisprudential factors involved in the dissent by Chief Justice Rehnquist, Justice Scalia and Justice Thomas that U.S. courts do not have jurisdiction outside the sovereign borders and territory of the United States compared to Justice Stevens' majority opinion that habeas jurisdiction extends to aliens held in territory where the United States exercises plenary and exclusive jurisdiction even though the United States does not have "ultimate sovereignty" over the base?

In Hamdi v. Rumsfeld, the court concluded that a United States citizen can be held as an enemy combatant but that due process requires him to be given a "meaningful opportunity" to contest his decision and to "receive notice of the factual basis for his classification and a fair opportunity to rebut the government factual assertions before a neutral decision-maker."

4. What are the jurisprudential considerations for a "meaningful opportunity" with respect to the evidence to (a) support classification of being an enemy combatant, (b) confront witnesses, (c) enjoy the right to counsel and (d) obtain access to classified information to contest the classification?

On Oct. 16, 2002, Congress authorized the president to use his force in Iraq. On March 19, 2003, the president exercised that authority. During the course of Senate debate on that resolution, I raised the issue as to whether there was an unconstitutional delegation by Congress to the president of the core constitutional authority to declare war. I cited authority to the effect that the framers never intended that a state of war could arise except as a result of contemporaneous decision of Congress on the basis of known facts. Obviously the Iraqi situation was subject to substantial change between October 2002 and April 2003.

5. How would you evaluate the jurisprudential factors on the constitutionality of Congress' delegation of its core authority to declare and initiate a war where circumstances may change from the time of the delegation until the time of utilization of that authority?

There has been considerable debate as to the exclusive authority of Congress to involve the United States in war contrasted with many instances where the president has involved the United States in military action under his constitutional authority as commander in chief.

6. Was the Korean conflict a war which should have, as a matter of constitutional law, required a declaration of war by Congress?

7. Was the Vietnam conflict a war which should have, as a matter of constitutional law, required a declaration of war by Congress?

Article II, section 2 of the Constitution states that the president "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur." There is a corollary procedure for executive agreements which require approval by the Congress. These procedures are labeled as "Congressional-Executive agreements" and are international agreements that Congress has authorized the president to negotiate and conclude, or international agreements that Congress approves after the president concludes them. In addition, it has become a commonplace practice for the president to execute agreements with foreign powers which are not viewed as requiring congressional approval under either the Senate's authority to ratify a treaty or the more formalized Congressional-Executive agreement procedure.

8. What jurisprudential factors are involved in the determination of when Senate ratification is required for a treaty, the formalized agreements calling for congressional approval and the less formal executive agreements which do not fall under either of the aforementioned standards?

9. Without inquiring in any way concerning the advice you have given the president because of the doctrine of executive privilege, what standard would you apply, if confirmed, in recusing yourself on any subject where you have advised the president?

10. What assurances can you give the Senate and the American people that you will be independent, if confirmed, and not give President Bush any special deference on any matter involving him which might come before the court?

If you would like to discuss any of these or other issues before the hearing, I would be pleased to do so.