Political Cortex: Brain Food for the Body Politic

If confirmed, Alito would join at least three other right-wing justices - John Roberts, Antonin Scalia and Clarence Thomas - who believe that George W. Bush should possess near total control of the U.S. government during the ill-defined War on Terror. If Anthony Kennedy, another Republican, joins them, they would wield a majority.

Alito's theory of the "unitary executive" holds that Bush can cite his "plenary" - or unlimited - powers as Commander in Chief to ignore laws he doesn't like, spy on citizens without warrants, imprison citizens without charges, authorize torture, order assassinations, and invade other countries at his own discretion.

"Can it be true that any President really has such powers under our Constitution?" asked former Vice President Al Gore in a Jan. 16 speech. "If the answer is `yes,' then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?"

The answer to Gore's final rhetorical question would seem to be no, there is nothing prohibited to Bush. The "unitary executive" can assert authoritarian - even dictatorial - powers for the indefinite future.

Under this government envisioned by Alito and Bush, Americans would no longer have freedoms based on the Constitution and the law, but on Bush's tolerance and charity. Americans would, in essence, become Bush's subjects dependent on his good graces, rather than citizens possessing inalienable rights. He would be a modern-day king.

In the face of such an unprecedented power grab, Americans might expect senators from both parties to filibuster Alito and resist Bush's consolidation of power. But Republicans seem more interested in proving their loyalty to Bush, and Democrats so far are signaling only a token fight for fear of suffering political reprisals.

A meeting of the Democratic caucus on Jan. 18 to discuss Alito drew only about two dozen senators out of a total of 45. The caucus consensus reportedly was to cast a "strategic" - or a symbolic - vote against Alito so they could say "we-told-you-so" when he makes bad rulings in the future. [See NYT, Jan.19, 2006]

But it's unclear why voters would want to reward Democrats for making only a meaningless gesture against Alito, rather than fighting hard to keep him off the court. An extended battle also would give them a chance to make their case about why they see Alito as a threat to the U.S. Constitution.

A filibuster could give voters time, too, to learn what Alito and Bush have in mind for the country under the theory of the "unitary executive." If after a tough fight the Democrats lose, they could then say they did their best and the voters would know what was at stake.