Alexandria, VA - January 9, 2005

Who Says That Judge Alito Cannot Provide Specific Answers To Questions About Presidential Power vs. Congressional Power, Even If These Very Questions, Or This Exact Case, Would Surely Come Before The Court In The Future.?

If Alito is asked such questions, and refuses to answer forthrightly and completely, the Senate should simply not consent to his appointment.

This is a very big deal. The President of the United States is trying to pull off a massive power grab, claiming he does not need to follow duly-enacted laws because he has some sort of "inherent powers" to do whatever he wants to do regarding national defense. And now this President's hand-picked nominee is seeking Senate consent to join the Supreme Court, which will surely be hearing cases on this exact subject. So why should he not tell us in advance what he thinks? How can we possibly consent to his nomination, not knowing how he will approach these cases? Why should we be forced to guess?

And where did we ever get the idea that a Supreme Court nominee should be exempt from commenting on matters which might come before him in the future? I can easily understand why a nominee might not want to answer such questions: because it might doom his chances for confirmation. And I can easily understand why the President who nominates him might not want him to answer such questions: because it might doom his chances for confirmation. But I cannot understand why the Senate has been going along with this irresponsible practice. It certainly is not required to do so by anything in the Constitution, or in the applicable Canons of Judicial Ethics. You can read them all, and see for yourself! (I provide links, below.)

The usual explanations for this practice go something like these two:

1. "First, what judges do limits what judicial nominees may discuss. Judges must be impartial and independent. Their very oath of office requires impartiality and the canons of judicial ethics prohibit judges and judicial nominees from making commitments regarding issues that may come before them."Source: Sen. Hatch, in his opening statement at the Roberts hearings, as transcribed at www.asksam.com/cgi-bin/as_web6.exe?Command=Doc&File=JGRHearing&DocID=93610&Request=ethics

2. The American Bar Association Model Code of Judicial Conduct dictates, and I quote, "that a judge or candidate for election or appointment to judicial office shall not with respect to cases, controversies or issues that are likely to come before the court make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office." Source: Sen. Kyl in his opening remarks at the Roberts hearings, as transcribed at www.asksam.com/cgi-bin/as_web6.exe?Command=Doc&File=JGRHearing&DocID=134112&Request=%5bmight+come+before%5d

Please note that these explanations say that commitments are prohibited and impartiality is required. That seems reasonable to me, and it seems to be consistent with both the "Code Of Conduct For United States Judges," located at www.uscourts.gov/guide/vol2/ch1.html and the "American Bar Association Model Code of Judicial Conduct," located at www.abanet.org/cpr/mcjc/mcjc_home.html

However, I am not asking for a commitment of any sort, just an explanation of what he thinks about the matter now. I am not seeking any promise from him; just an explanation. Specifically: does he now believe that the Constitution permits the President to deliberately violate the clear provisions of a duly-enacted law, as President Bush said he might do in his "signature statement" of Dec. 30, as shown here: www.whitehouse.gov/news/releases/2005/12/20051230-8.html ? And if so, what is the legal basis for this belief, as he sees it?

There is one sentence in the "Code Of Conduct For United States Judges" which seems to require that the judge not comment on pending cases, and that is this:"A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control." But there is a specific exception which applies in this case: "This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education." A Senate confirmation hearing would certainly be "a public statement made in the course of the judge's official duries." (Canon 3-A-6)

A similar restriction, with a similar exception, is found in the American Bar Association's "Model Code Of Judicial Conduct." (Canon 3-9)

So these Canons are no barrier, either.

And providing this information does not make him less "impartial," merely truthful. There is no partiality about telling the truth. Partiality occurs when you apply the law differently to different people, favoring one over the other. If he applied the law differently to President Bush than to some other President, that would be partiality. But providing an opinion on what the law is, before it is applied in a specific case, is not being partial; it's just explaining what the law is, as he sees it. His impartiality would not be compromised by giving us a straight answer to this important question.

This nominee cannot take office until such time as the United States senate consents to it. (See Article II, Section 2 of the United States Constitution, located at http://www.patriot.net/users/bmcgin/usconstitutiona.txt )

And informed consent is only possible if this nominee tells us, in advance, what he now thinks about these important matters. Why should we be forced to guess what he thinks? We are entitled to know what he thinks, and we must not pussyfoot around the issue because of some weak excuse that has been offered and accepted in the past.

Blessings to you. May God help us all.

       Rev. Bill McGinnis, Director - LoveAllPeople.org

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