Chafee Misquotes Alito to Justify his “No” Vote

In his statement explaining his vote against confirmation of Samuel Alito to the Supreme Court, Senator Lincoln Chafee misquotes an answer given by Judge Alito on the subject of executive power. Here is Senator Chafee’s version…

Judge Alito was also asked “…is it possible under your construct that an inherent Constitutional power of the President could, under some analysis or some case, override what people believe to be a Constitutional criminal statue?” Judge Alito responded that this was possible noting a “possibility that that might be justified”.

The selective quotes presented by the Senator leave the impression that Judge Alito has already decided that the Constitutional power of the President can override a Constitutional statute.

That is not what Judge Alito said. Here is the full exchange, involving Judge Alito and Senator Russell Feingold, as transcripted in the Washington Post…

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.

So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

What Senator Chafee attributes as Alito explaining his own position is really Alito explaining the view of Justice Robert Jackson in the case of Youngstown Sheet & Tube v. Sawyer (1952). When Judge Alito (very cautiously) presents his own view, he explains that he does not necessarily concur with Justice Jackson on this issue…

ALITO: But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

If this issue is as important to Senator Chafee as he claims that it is, then the Senator should have made a better effort to understand -- and present -- what Judge Alito actually said.

This is a perfect example of the source of the widespread disaffection with Senator Chafee. It’s not just the liberal positions that he takes (though that is undeniably part of it) but also the sloppy reasoning, like the above, used to justify those positions. Deference to liberal groupthink is not equivalent to taking a principled stand.