Samuel Alito and the Unitary Executive

SAMUEL ALITO AND THE UNITARY EXECUTIVE….Robert Parry thinks that Democrats on the Senate Judiciary Committee badly screwed up their questioning of Samuel Alito ? a proposition that’s hard to argue with ? and suggests that instead of the scattershot approach they adopted they should have lasered in on his support for expansive executive powers:

Alito has been such an unapologetic supporter of the right?s beloved Imperial Presidency that Alito?s one noteworthy assurance ? that George W. Bush was not ?above the law? ? was essentially meaningless because in Alito?s view, Bush is the law.

Yet the Democrats were incapable of making an issue out of Alito?s embrace of the ?unitary executive,? a concept so radical that it effectively eliminates the checks and balances that the founding fathers devised to protect against an out-of-control president.

I’m inclined to agree, although there’s an inconvenient fact that gets in the way of Parry’s suggestion: Bush is hardly the first president to promote the “unitary executive” theory. Nor is it an exclusively Republican fixation.

It’s true that the principle of the “unitary executive” was first promoted aggressively by the Reagan and Bush Sr. White Houses, but as Christopher Kelley, a political science professor at Miami of Ohio, noted in a paper last year, “President Clinton did more to move the executive branch agencies closer to White House control than either the Reagan or Bush presidencies.” It was Clinton who “accepted and perfected” the notion of a unitary executive.

So that makes things harder. But far from impossible. Presidential signing statements are one of the key components of the unitary executive concept, and as Kelley noted in his doctoral dissertation on the subject, Clinton issued about 15 signing statements a year during his presidency. This makes him a piker. If we accept that Clinton “perfected” the unitary executive, we can only surmise that perfection wasn’t good enough for Bush, who has issued a whopping 100 signing statements per year, a total of 435 in his first term alone ? some of them making dozens of objections to a single bill. Kelley’s paper makes it clear that this obsessive performance, driven primarily by Dick Cheney’s counsel (now chief of staff) David Addington, has transformed a routine part of the tug-of-war between the executive and legislative branches into an arguably abusive expression of Bush’s belief that he is the commander-in-chief of a virtually unaccountable wartime presidency.

So I think Parry is right. It would have taken some serious research to prepare for an all-out attack on the Bush administration’s view of executive sovereignty ? not to mention a bit of coordination between the Judiciary Committee’s Democrats ? but at least it would have given the press something interesting and unexpected to write about. What’s more, even if it hadn’t worked, at least it would have raised an important topic for public airing, which is more than Senate Dems accomplished with their self-indulgent and ineffectual questions about Alito’s membership in CAP or his conflict of interest with Vanguard Group.

It was an opportunity missed.