Bench Memos

NRO’s home for judicial news and analysis.

Demagogue Durbin


It seems clear that Senator Durbin can’t be trusted. On anything. Period.

Here’s an excerpt from his opening statement on Alito’s supposed views on presidential power:

As a government lawyer, you pushed a policy of legislative construction designed to make congressional intents secondary to presidential intent. You wrote, and I quote, “The president will get in the last words on questions of interpretation,” close quote.

But Alito wasn’t pushing any “policy of legislative construction”. His memo was exploring the pros and cons of a proposal to enhance the use of presidential signing statements. The proposal was expressly designed to ensure that, “for courts and litigants,” “the President’s understanding of the bill [he signed into law] should be just as important as that of Congress.” So Durbin’s claim that it was designed to make congressional intent “secondary” is also false.

But it gets much worse. The language that Durbin purports to quote is the tail end of a sentence that presents an argument against the enhanced use of presidential signing statements: “In addition, and perhaps most important, Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.” In other words, Durbin clipped the dependent clause to give Alito’s words an entirely different meaning from what they actually bore.

Sleazy. Dishonest. Exquisitely Durbinesque.


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