Bench Memos

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Kerry’s Follies


I’m not sure why Senator Kerry returned all the way from Davos to deliver a floor statement that was as badly flawed as his statement two days ago. (Perhaps having a private plane induces such follies?) A few examples:

Kerry first faults Alito for the memo he wrote in 1984, as an assistant to the Solicitor General, concerning the fleeing-felon rule in Tennessee v. Garner. Somehow, despite all Kerry’s stated concerns about having a nominee fit into Justice O’Connor’s role on the Court, he fails to mention that Alito’s position was the same as O’Connor’s in her dissent in Tennessee v. Garner.

Kerry repeats his same distortions about Doe v. Groody, the case involving the question whether a search warrant adequately incorporated the affidavit that was attached to it.

But perhaps most remarkable is Kerry’s laughable misunderstanding of the theory of the unitary executive. Here’s the most telling passage (which I heard as well on C-SPAN, so I’m confident that there’s no transcription error):

“As Beth Nolan, former White House Counsel to President Clinton describes it — quote – ‘unitary executive is a small phrase with almost limitless import. At the very least, it embodies the concept of presidential control over executive functions, including those that have traditionally been exercised by independent agencies and other actors not subject to the president’s direct control. Under this meaning, Congress may not by statute insulate the federal reserve or the federal election commission from presidential control.’ Judge Alito believes you can.”

In fact, advocates of the unitary executive would say that you can’t – that is, that Congress may not insulate agencies exercising executive power from presidential control. (Judge Alito made clear in his testimony that the contrary precedents in this area were settled). In short, Kerry, purporting to be knowledgeable about the unitary executive, in fact has no idea what he is talking about. So no one should credit him when a few sentences later he falsely asserts that Alito was “just flat wrong” that “the unitary executive theory is not about the scope of presidential power.”

It’s Kerry who is just flat wrong–and ridiculous, to boot.


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