As I listened today, fretfully and anxiously, I kept thinking what Ohio State University law professor Peter Shane said on C-Span on December 28, and I am praying that the Senators and activists are intensely focused on this. It seems we are:

It is easy to get grassroots activism for an issue like privacy. There are groups set up for that, and people will rally on the issue of privacy.

My concern about Samuel Alito’s nomination has to do with how he, with the newly appointed Judge Roberts, wiill rule on matters of presidential executive authority.

Presidential powers is my specialty, so perhaps I am focusing on it in particular because of that. But, I feel that it is critically important.

But [Shane lamented] while grassroots groups will organize around privacy, they don’t organize around presidential powers — they won’t organize around “checks and balances” issues — and that is perhaps more important. — (From my Dec. 28, 2005 story, “We’re Cats Stuck in Bush’s Poisonous Tree,” and notes I took as Shane spoke on C-Span.)

“At a press conference this morning [Jan. 5, 2006] at the National Press Club, Peter Shane, professor of law at Ohio State University’s Moritz College of Law and an expert on executive power, raised serious concerns about Alito’s record on presidential power,” reports the Dark Vilious Vapors blog:

“[Alito] is resolutely deferential to assertions of executive authority, while going out of his way to invent imaginary limitations on Congress’s legislative powers,” Professor Shane said. “In the hands of the current administration, it is this same line of thinking that has spawned unprecedented claims of executive privilege, preposterous claims of authority to engage in torture, unprecedented claims to hold U.S. citizens indefinitely as enemy combatants, and now an apparent pattern of flagrant and unapologetic violations of the Foreign Intelligence Surveillance Act.”

(Note: This is from a longer piece, “Speaking Up and Signing Up…,” that begins, “A group of prominent law professors released a letter to Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and Ranking Member Sen. Patrick Leahy (D-Vt.) signed by over 500 law professors in opposition to the nomination of Judge Samuel A. Alito to the Supreme Court. …”)

Then there are Armando’s words today in “The President’s Judicial Power?“:

In his answers to the questions of Senator Russ Feingold (D-WI) on Presidential power, it appeared to me that Samuel Alito tried to give the impression that he viewed the President as required to “faithfully execute the laws” and thus, Alito wishes us to think he believes, the President can not disregard duly enacted federal law. However, Alito was very careful to say that the President most importantly, must “follow the Constitution.” Sounds good right? Well John Yoo said the same thing:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander in Chief authority in the President.

See how that works? The President must “faithfully execute the law,” but most importantly the Constitution. And no doubt most importantly, the Bush/Yoo/Alito view of a prohibition in Article II of the Constitution prohibiting Congressional regulation of the President as Commander in Chief.

Significantly, Alito said that the President must “faithfully execute the laws” except those he believes are unconstitutional! The President’s judicial power? Who knew?

But you get it now. What Alito told Feingold could have been repeated, indeed no doubt was, verbatim by John Yoo. Cold comfort from Alito on the issue of the President as King.

You’ll recall Larry Johnson’s blistering attack on John Yoo — “What Next? Pedophilia?“: (And never mind that these extra-legal beagles like Yoo, Gonzales and Alito, “by choosing not to invest the time and effort to find a solution with Congress,” are doing “far-reaching damage to the intelligence community,” writes Roger Cressey, NBC News’s Terrorism Analyst.)

Checks and balances. Bush et al. have usurped this key basic principle. They must be stopped.

You were very well-behaved today — through 11 long hours — and you each deserve TWO (isn’t that the magic number?) milk bones.

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