Bench Memos

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More of the New York Times’s Wisdom


The New York Times editorial page has long shown that it does not deserve to be taken seriously on the topic of Supreme Court nominations, and its boring and baseless anti-Alito screed today merely provides further confirmation of the point.

I’ll limit myself to the NYT’s core claim – that Judge Alito “has a radically broad view of the president’s power.” One problem with this claim is that the editorial offers not a shred of credible evidence to support it. The editorial charges that Alito “has supported the fringe ‘unitary executive’ theory, which would give the president greater power to detain Americans and would throw off the checks and balances built into the Constitution.” But the “unitary executive” theory merely takes seriously what Article II of the Constitution states: that the “executive Power shall be vested in a President of the United States of America.” As Judge Alito testified repeatedly, it does not reach the separate question of the scope of that executive power. Indeed, the editorial’s charge that the theory “would give the president greater power to detain Americans” is contradicted by the fact (seemingly never acknowledged by those trying to use the “unitary executive” as a stick to beat Alito with) that Justice Scalia, a proponent of the unitary executive, took a much more restrictive view of executive power than Justice O’Connor did in the Hamdi case.

The only other supporting argument that the editorial offers regarding Alito’s supposed views on presidential power relates to his 1986 DOJ memo on presidential signing statements. This is at least the third New York Times editorial to trumpet this memo, yet there is no sign that the editorial writer has yet read and understood the memo. Alito, as head of a task force, was exploring how to implement a decision that the Attorney General had made. He wasn’t offering a proposal of his own. And his thoughtful memo presents at length various problems with implementing the decision.

The rest of the editorial is of similar quality.


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