My commentary on the Supreme court: Alito has been confirmed, Roberts breezed through, third spot pending. Now, Bush and the Federalists have 5 out of 9 Justices predisposed to rule in their favor on issues of importance to their aims. 4 out of 9 are proud Federalist society members (Scalia, Thomas, Roberts, Alito), a group which promotes a radical view of executive power, congressional oversight, and foreign policy objectives. There are many more shadier beliefs originating with current or past members of the group, but no reason to necessarily associate them with any of the sitting justices.

The abortion issue is a sham. These selections had nothing to do with abortion, and the debate shouldn't focus on it. Roe versus Wade may stand, or it may not. It may be worn down to a point of impotence (no pun intended), as everyone was fearing when Alito's internal Reagan whitehouse documents were released, it may be revised, or it may be flatly overturned; or most likely it will be left alone in large part due to the principle of starae decisis and limits on its application will be imposed according to according to a narrower interpretation of other statutes and perhaps the Constitution also. The point is, you shouldn't care. The Administration doesn't choose Supreme Court nominees because they suspect they will overturn the right to an abortion. I'm sure they marginally care about abortion, but it's just meant to be manipulative. This is pretty much the same deal as "let us raise your taxes, and we'll stop boys from kissing." There is no hard evidence that either new Justice will commence rolling back civil rights or abortion or gender rights, despite what the stupid sensationalist media says. However, the evidence is clear as anything, in that both Justices talked about it extensively in their respective confirmation hearings, that both have extreme and reformative views of the nature and extent of government.

The evidence is all out in the open, and people just aren't paying attention to it. Remember Alito defending the point that the unitary executive is actually a misunderstood and not radical approach? There are doubtless many breeds of this "theory" - although it's not so much a theory as it is a movement. Some embody the sentiment of America's beloved president Nixon, right after he resigned, when he said "If the president does it, that means it's not illegal." (There's a reason he became a consultant on foreign policy and not the Constitution) Others suggest that the range of things the executive does is limited in some way, but once those boundaries are established, activities should be unhindered by Congressional oversight. This seemed to be the kind of view Alito was articulating, but who knows.

The next logical question to ask is, who sets those boundaries? Well, in the short-term the executive can do whatever it wants, short of impeachment or the unlikely creation of some kind of new investigative agency. Ultimately, anything can come before the courts, and they have the final word. So, assuming that the executive does everything in the distant expectation that it will ultimately be supervised by the Supreme Court, we can clearly say that a careful Executive does everything that he thinks the Supreme Court won't strike down. There are three years left in this Administration and the president and his staff already have a good idea of how at least four of Justices will rule on major hotbutton issues of government. Scalia, Alito, Thomas and (I think) Roberts, all believe in presidential signing statments, which essentially says they think the role of the Executive is not to execute the laws passed by Congress but to execute AS WELL AS interpret the laws passed by Congress. Then, all three (with Roberts being the perennial wildcard thus far) are proud "textualists" in their interpretation of Constitutional matters. They take literally that clause in the Constitution (whatever it says exactly...) that the Executive has unlimited power to protect the American people in wartime. Ok, so we are in a war on terror for until they say it's over, so I guess the president the president has unlimited authority and that settles the wire-tapping debate. Isn't textualism fun! Alito and Roberts' views on privacy are instructive. I believe it took Alito a few days and several hours of hectoring by Democratic senators before he acknowledged a Constitutional right to privacy. Roberts' answer I believe was something to the effect, "I believe there is a Constitutional right to be left alone." That's interesting, because one, neither is a very emphatic supporter of the right to privacy, and Roberts' answer reflects only a small part of the concept of privacy. Isn't that interesting given the new information on legally questionable undertakings of the Administration which is now being legally predicated on a generic grant for use of force against Al Qaeda.

Ultimately, the wiretapping program itself is not of great consequence to this issue. With the amount of overt attention and scrutiny alreayd being paid to this, it seems unlikely that it will go before the Supreme Court. I'm not a lawyer, but from my assessment it seems illegal. At any rate, the entire notion of Executive authority and control in foreign policy is being radically questioned. I'm greatly concerned by this, because as anyone knows foreign affairs is going to be THE KEY focalpoint for many years.

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