Who Checks the President, and What Should We Ask Alito?

Or, I *heart* law school. And blogging for choice:

Noah Feldman is on it. It’s long, but worth a full read.

Cheryl Mills, who I had the great pleasure to meet last year and who is fabulous and brilliant, has five questions for Alito.

Kenji Yoshino, deputy dean for intellectual life at Yale Law School, has five more that focus on privacy rights, “hidden rights,” and executive power.

Read the whole Thirty Questions series:

John Yoo, a former deputy assistant attorney general in the George W. Bush administration and a professor of law at the University of California at Berkeley.
Leonard A. Leo, the executive vice president of the Federalist Society
Scott Turow, a former federal prosecutor
Stanley Fish, a former chairman of the English department at Duke University, and a professor of law at Florida International University.

And because it’s Blog For Choice day, my five favorite questions for Alito:

1. If you were sitting on the court in 1973 when it protected a woman’s right to have an abortion in Roe v. Wade, would you have voted with the majority?

2. In a famous debate half a century ago, the legal theorists H. L. A. Hart and Lon Fuller differed on the question of whether Nazi law in Germany was, in fact, law. Hart argued that morally iniquitous laws that have a valid form – laws that have emerged as the result of following legitimate procedures – are still laws, even though we might want to say that they are bad laws. Fuller contended that a legal system devoted to evil aims could not be called law because there is “a necessary relationship between substantive justice and procedural justice.” With which of these theorists are you in agreement? Are law and morality finally one or can they be distinguished? Were the laws denying the vote to women in America real laws or spurious laws?

3. Does the Constitution require that courts provide the same legal protections to gays as to racial minorities and women?

4. Do you believe that the Constitution protects rights that do not appear in the text of the document itself and, if so, how do you think the Supreme Court should go about discerning the nature of those rights?

5. Assume for the sake of this question that the Supreme Court concludes in the future that Roe v. Wade was wrongly decided, and that the Constitution does not protect a woman’s right to have an abortion. Without stating how you would ultimately rule, but speaking simply as a constitutional expert, is there any constitutional provision that might reasonably be thought to reserve the right to regulate abortion to the states, as some Roe opponents contend? Put another way, if Roe was reversed, what constitutional provision might prevent federal efforts to impede or outlaw abortion, like statutes making it a crime to either cross state lines to seek an abortion or place in the stream of interstate commerce any medical device or implement knowing it is likely to be used for an abortion?


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16 comments for “Who Checks the President, and What Should We Ask Alito?

  1. January 9, 2006 at 10:58 am

    Re: #4

    Do you believe there are rights in the Constitution that do not appear in its text, and, if so, how do you go about discerning the nature of those rights?

  2. zuzu
    January 9, 2006 at 11:38 am

    -John Woo, a former deputy assistant attorney general in the George W. Bush administration and a professor of law at the University of California at Berkeley.

    That’s actually John Yoo, the former deputy assistant AG responsible for the torture memo. He’s also of the opinion that there are no limits on Presidential power.

  3. January 9, 2006 at 12:37 pm

    Hey, speaking of the late lamented Constitution, Bush just signed a bill into law that makes Allah a federal criminal.

  4. January 9, 2006 at 12:39 pm

    Zuzu’s right, John Woo was the guy who wrote a memo saying that there are no limits to the number of acrobatic gunfights in a Hong Kong action flick.

  5. B Moe
    January 9, 2006 at 1:37 pm

    A bullshit law for sure Chris, interesting how the author of the link doesn’t mention the sponsors.

  6. zuzu
    January 9, 2006 at 1:56 pm

    BMoe, you’re being disingenuous.

    The bill was a must-pass appropriations bill, and the relevant section was buried deep within it. The list of cosponsors you linked to was for the entire bill, not Sec. 113.

    In fact, the article Chris cited does explain who slipped it in there:

    This ridiculous prohibition, which would likely imperil much of Usenet, is buried in the so-called Violence Against Women and Department of Justice Reauthorization Act. Criminal penalties include stiff fines and two years in prison.

    “The use of the word ‘annoy’ is particularly problematic,” says Marv Johnson, legislative counsel for the American Civil Liberties Union. “What’s annoying to one person may not be annoying to someone else.”

    Buried deep in the new law is Sec. 113, an innocuously titled bit called “Preventing Cyberstalking.” It rewrites existing telephone harassment law to prohibit anyone from using the Internet “without disclosing his identity and with intent to annoy.”

    To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section’s other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice. The plan: to make it politically infeasible for politicians to oppose the measure.

    The tactic worked. The bill cleared the House of Representatives by voice vote, and the Senate unanimously approved it Dec. 16.

  7. zuzu
    January 9, 2006 at 2:08 pm

    Sorry. Reauthorization bill, not appropriations.

  8. January 9, 2006 at 3:25 pm

    Does the Constitution require that courts provide the same legal protections to gays as to racial minorities and women?

    How do you define “legal protection”? Does it include, say, marriage, or do you mean just anti-discrimination legislation?

  9. B Moe
    January 9, 2006 at 6:22 pm

    BMoe, you’re being disingenuous.

    Yeah I am, but so is blaming it on Bush because he signed it. Who were Spectre’s co-horts, by the way? I haven’t been able to find out.

  10. January 9, 2006 at 6:59 pm

    Yeah I am, but so is blaming it on Bush because he signed it.

    Aw, poor little B Moe’s fee-fees hurt just because I referred to an aspect of a bill becoming law.

    It must suck to be Bush right now. Casually mention one of his minor accomplishments*, and his defenders accuse you of *blaming* him. Way to stab your president in the back, dude.

    *yes, signing an appropriations bill is an accomplishment. Were I president, and absent a line-item veto, I’d likely have done exactly what B Moe accuses me of “blaming Bush” of doing. Though I might have taken time out to subject Bill from INDC to Extraordinary Rendition in Ann Arbor first.

  11. B Moe
    January 9, 2006 at 7:09 pm

    How much do you have to bribe those grade school kids to write your rebuttals for you?

  12. zuzu
    January 9, 2006 at 9:55 pm

    Yeah I am, but so is blaming it on Bush because he signed it. Who were Spectre’s co-horts, by the way? I haven’t been able to find out.

    I don’t know, either; looks like that link you provided only gives the House sponsorship.

    Actually, I can’t really blame Bush for signing a must-pass DOJ reauthorization bill, because it’s very, very broad. Specter and whoever else slipped it in, yes.

    These omnibus bills with little poison pills slipped in are a big reason why Senators don’t get elected President — it’s too easy to bludgeon them with “You voted against the Defense bill! You hate our troops!” when they were, say, taking a principled stand over a rider that had nothing to do with defense appropriations.

    But let’s be realistic. The Republicans control the House, the Senate, and the Presidency. Which means that ALL phases of legislation are well within their control — they can pass legislation even if every last Democrat and Independent in Congress votes against it. Other than filibusters, Democrats really have no power to influence legislation.

  13. January 9, 2006 at 10:22 pm

    How much do you have to bribe those grade school kids to write your rebuttals for you?

    A lot. They have to work hard to write at a level you can comprehend.

  14. B Moe
    January 9, 2006 at 10:35 pm

    But let’s be realistic. The Republicans control the House, the Senate, and the Presidency. Which means that ALL phases of legislation are well within their control — they can pass legislation even if every last Democrat and Independent in Congress votes against it. Other than filibusters, Democrats really have no power to influence legislation.

    True that. I just like to blame the right ones.

  15. January 10, 2006 at 2:45 am

    I watched much of the hearing on Fox News because sitting here in my office watching a web C-Span stream would eventually put severe bruises on my slender ectomorphic ass.

    Anyway, in the middle of it–and I really wish I could remember which senator was speaking at the time–Fox went to News Flash mode and ran a double screen showing the NYSE board approaching the 11,000 DJA.

    As for analysis, it depends on who was talking when that news flash occurred.

    If it came during an anti-Alito rant by a Democrat, well, what a great way for the wingnuts to shift the focus from the strip-searcher to how great the Bush tax-breaks-for-the-rich economy is.

    If the news flash came as a Republican was kissing the strip searcher’s ass, well Jeeze Louise, what a lucky friggin’ break!

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