Filibuster Alito: "to preserve, protect and defend"

In an op-ed in the Chicago Tribune today, Geoffrey R. Stone, a University of Chicago law professor who supported the confirmation of John Roberts and initially that of Alito, came out against confirmation, on the grounds that Alito will lean too far toward granting the Executive branch unlimited power.

I supported the confirmation of John Roberts Jr. to the U.S. Supreme Court and, until recently, the confirmation of Samuel Alito Jr. I have reluctantly come to the conclusion, however, that Judge Alito should not be confirmed and that this is a matter of real importance to the nation.

Alito is a smart, experienced and knowledgeable jurist. I have no doubt of his legal ability. On balance, the Senate should give more weight to excellence than judicial philosophy. Why, then, should the Senate deny confirmation to Alito? The most fundamental responsibility of the Supreme Court is to preserve both the separation of powers and the individual liberties guaranteed by our Constitution. They are the bulwarks of our freedom. Yet history teaches that these indispensable elements of our constitutional system are most threatened in time of war. Too often in wartime, the president demands excessive authority in his role as commander in chief and the president and Congress run roughshod over civil liberties in their effort to protect, or appear to protect, the nation.
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The last line of defense against such excesses is the Supreme Court. With life tenure, the justices are largely insulated from the need to please any particular constituency for personal advancement. And with their unique commitment to long-term principle rather than short-term political expediency, they are well-placed to resist the fears and anxieties of wartime.
[snip]

Now, Bush arrogantly asserts that he has the inherent constitutional authority to wiretap American citizens on American soil without first obtaining a warrant, in direct defiance of federal legislation and the 4th Amendment. This is on top of his previous assertions of inherent authority to employ torture, wiretap lawyer-client communications, confine American citizens incommunicado and close deportation and other legal proceedings from public scrutiny.

Given the times in which we live, we need and deserve a Supreme Court willing to examine independently these extraordinary assertions of executive authority. We can fight and win the war on terrorism without inflicting upon ourselves and our posterity another regrettable episode like the Red Scare and the Japanese internment. But that will happen only if the justices of the Supreme Court are willing to fulfill their essential role in our constitutional system.

Whatever else Alito may or may not have made clear about his views on such issues as abortion, federalism and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander in chief. That, in my judgment, poses a serious threat to the nation and is a more than adequate reason for the Senate--Republicans and Democrats alike--to deny his confirmation to the Supreme Court.

At the very least, this makes me feel less like Chicken Little than I was feeling in my earlier post on this topic. Though some liberals are still calling for a "pragmatic" resignation to his confirmation [note my $.02 there, and the mention of Scatablog!], I am even more inclined to take this vote far more seriously, and view the filibuster as a necessary and principled action, involving nothing less than the Senators' oath of office.