They’ve got two anti-Alito pieces up. Their editorial recommends a no vote. Why? They want to keep Roe while also getting intellectual-credibility points for allegedly opposing it (and also while pretending that it pertains only to early abortions). They think Alito endorsed an “inflexible originalism” hostile to precedent–never mind that Alito extolled the value of precedent about a thousand times, in statements the editorial does not see fit to mention. Finally, they think that Alito would be too deferential to executive power.

Jeffrey Rosen expands on this argument in his own (reg. req’d.) piece. Parts of this argument seem awfully weak: He reads a lot about Alito’s views into some minor mistakes he made in characterizing precedents. Then there’s the usual bit about signing statements.

Alito said he was merely discussing “theoretical problems,” adding, “I don’t see any connection between the concept of the unitary executive and the weight that is–that should be given to signing statements in interpreting statutes.”
In fact, the connection is obvious. As Leahy noted, The Wall Street Journal has reported that Bush has cited the powers of the “unitary executive” 103 times in presidential signing statements. . . . [Alito’s] refusal to acknowledge the connection between his past support for signing statements and the Bush administration’s use of them to ignore laws with which it disagrees seems disingenuous.

Alito was making the point, which Rosen does not even begin to challenge, that a judge can support the theory of the unitary executive while also giving low or no weight to presidential signing statements in interpreting laws. Far from being disingenuous, this claim is true. There are connections and there are connections. Two theories can be connected by vritue of being in the same sentence uttered by Pat Leahy, for example. I’m sure that the president has alluded any number of constitutional theories in his signing statements. No such allusion can create the “connection” that Alito was denying.