Letter to Democratic Senators

Dear Senator,

I write now to urge you not only to oppose Samuel Alito's nomination to the Supreme Court, but also to support a filibuster, which is the only way for your opposition to have any practical value. If you are already committed to doing so, then I thank you for your support. If you are not, then I respectfully ask you to reconsider.

I won't dwell on the extent to which Judge Alito is out of the mainstream on social or regulatory issues. These are crucial issues, of course, and bad decisions will have real and terrible human costs; but bad decisions on these issues will not (in themselves) threaten the republic. Bad decisions on executive power, on the other hand, will permanently (or for the foreseeable future) distort the nature of American government.

By way of perspective, I think we need to go back a year and look at the confirmation hearings for Alberto Gonzales. As President Bush's attorney, he had a troubling of arguing for unchecked executive power, including (but not limited to) the right to torture prisoners in wartime. He was interrogated at some length about this by the Judiciary Committee, and in his testimony he did his best to allay these concerns:

With the consent of the Senate, I will no longer represent only the White House; I will represent the United States of America and its people....

And I want to make very clear that I am deeply committed to the rule of law. I have a deep and abiding commitment to the fundamental American principle that we are a nation of laws and not of men. I would not have the audacity to appear before this committee today if that commitment were not the core principle that has guided all of my professional endeavors....

While I look forward to answering your specific questions concerning my actions and my views, I think it is important to stress at the outset that I am and will remain deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law.

That was a year ago. Here is what he said last week:

It has long been recognized that the President's constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.

Mr. Gonzales, having asserted his commitment to the rule of law, now argues that the executive branch is not in fact bound by the law. Having assured us that he would be our attorney and not President Bush's, he argues for the privileges of the president and against the rights of American citizens. It is no great leap to conclude that Mr. Gonzales deliberately misled the Senate in order to be confirmed.

With Judge Alito, we have a similarly troubling record on executive power. He has argued for the right of administration officials to commit crimes with impunity. He came up with the idea of using 'signing statements' to negate the will of Congress, and expand the power of the President. He has embraced the radical theory of the 'unitary executive', in which Federal power is concentrated in the Executive branch--in direct conflict with the system set up by the Founders.

I have read that some Democratic Senators feel reassured by Judge Alito's testimony. I read these reports and cannot help but conclude that some are making the same mistake the Senate made with Alberto Gonzales. Whatever deference the Senate owes to the President in regard to his appointment--and that, of course, is a matter of debate in the first place--is entirely negated once an appointee misleads the Senate as egregiously and shamelessly as Mr. Gonzales did. The burden is now on the President and his appointees to demonstrate in real, concrete ways--not just with soothing platitudes for the benefit of the Judiciary Committee--that they are not committed to the radical transformation of American government. Judge Alito has completely failed to meet this burden.

I understand that a number of Senators agreed that they would use the filibuster only in extreme circumstances. As Professor Kleiman says: "If the nomination to the Supreme Court of a judge who thinks the President can sometimes order his subordinates to violate criminal laws, by a President who is currently doing exactly that, doesn't count as an "extraordinary circumstance," what would count?" These are precisely the circumstances under which a filibuster is not just acceptable but a moral necessity.

I understand that many Democrats worry about the political repercussions they might suffer if they filibuster Alito's nomination. This is not unreasonable. At the same time, it seems clear to me that of all the attitudes a politician can adopt, the least appealing--the one guaranteed to drive away supporters and harden opponents--is fatalism. To say it isn't worth filibustering because it will fail is to say that Democrats are weak, that Democrats have no interest in winning, that Democrats are unworthy of anyone's support.

I do not believe any of these are true. I am a proud Democrat, and have been all my life. I first worked for the party as a child, in 1972, and I have supported the party ever since. I believe you and the other Democratic Senators are worthy of my support.

I hope you will find it in your conscience to prove me right.

Respectfully yours,

Thomas V. Hilton

[That's all, folks]