Date: January 13, 2006
Senator: Witness - Nolan
Topic:
Contents
SPECTER: Thank you very much, Professor Kronman.
We turn now to Ms. Beth Nolan, partner in Crowell and Moring Litigation Group, has a broad practice which focuses on constitutional and public policy issues.
Ms. Nolan held prestigious and high ranking positions in the Clinton administration in the Department of Justice in the Office of Legal Counsel. She had been a clerk to Chief Judge Collins Seitz of the Third Circuit. Is an undergraduate -- has an undergraduate degree from Scripps College and a law degree magna cum laude from Georgetown in 1980.
Thank you for being with us today, Ms. Nolan. We look forward to your testimony.
NOLAN: Thank you, Mr. Chairman, Senator Leahy, members of the committee. I'm delighted to be here today, and thank you for inviting me to provide my views.
I want to address one issue, how Judge Alito, if he should become Justice Alito, would approach questions of executive power.
I've served, as you mentioned, Mr. Chairman, in the White House as Counsel to the President, and political and career positions in the Office of Legal Counsel in the Clinton and Reagan administrations.
As might be expected of one who has served as legal counsel to the president, I believe it is essential to defend the power of the president to undertake his constitutionally assigned responsibilities and to resist illegitimate incursion on that power. And certainly, in my position as White House Counsel, I sometimes was in conflict with Congress as each branch struggled to assert its views of its authority.
This does not mean, however, that the executive should assert a view of its power that is virtually unconstrained or that fails to take account of the constitutional powers of Congress. Presidential power should be interpreted, even by lawyers for the president, with proper respect for the coordinate branches, not solely to maximize presidential power.
Judge Alito's service, as has been mentioned, on the Third Circuit, has not offered him much opportunity to address issues of executive power, but we do have some indication of his views. And I find particularly instructive and troubling his 2000 Federalist Society remarks in which he announced his support of the unitary executive theory. What he means by that support is a critical question.
It's a small phrase in one way -- unitary executive -- but it has almost limitless import to many of its adherents. At one level, it embodies the concept of presidential control over all executive functions, as Professor Chemerinsky mentioned, a concept that's been soundly rejected by the Supreme Court.
But the phrase also often serves to embrace a bundle of expansive interpretations of the president's substantive powers and correspondingly stringent limits on the legislative and judicial branches. This is the apparent meaning of the phrase in many of the administration's -- this administration's -- signing statements, claiming broad powers for the president.
In his Federalist Society speech, Judge Alito endorsed the theory of the unitary executive as developed during the period he served in the Office of Legal Counsel as a supervising deputy. An important question is how he views OLC precedence from that time.
In one opinion from that time involving covert activities, OLC expressed the president's authority in sweeping terms, adopting Justice Sutherland's dicta from a very different context to assert that the president's authority to act in the field of international relations is plenary, exclusive and subject to no legal limitations, save those derived from the applicable provisions of the Constitution itself, while declaring that Congress had only those powers in the area of foreign affairs that directly involve the exercise of legal authority over U.S. citizens.
This would seem to mean that the president is essentially above the law in the areas of foreign affairs, national security and war, and Congress is powerless to act as a constraint against presidential overreaching in these areas. It is a fair question whether Judge Alito agrees with these sweeping views.
This is not just of historical interest, of course. That version of unitary executives from the 1980s sounds remarkably similar to the assertions of unreviewable and unconstrained powers the current president has asserted with regard to his authority to ignore the laws passed by Congress, such as those forbidding torture and those regulating electronic surveillance. These issues may well come before the Supreme Court.
Judge Alito indicated over 20 years ago his strenuous disagreement with the usurpation by the judiciary of the decision making authority of the political branches.
Does this signal that he will defer to the executive branch's positions on its power and its claims that these positions are largely unreviewable? Or will he, as Justice O'Connor did in Hamdi, see a clear role for the courts in protecting our constitutional balance and, hence, our civil liberties?
Judge Alito's statements about executive power raise legitimate and serious questions that should be explored.
Contents
Prev
Next
Last
