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Tuesday, January 03, 2006

Message to Snarlin' Arlen:

Hold your NSA Hearings First, and then run the Alito hearing.

There are two basic reasons for this plan:

  1. Justice O'Connor still sits on the SCOTUS and will continue to do so until her replacement is confirmed. Thus filling her seat is not exigent in the way it would be if she had stepped down already (the concern then would be that the Court might deadlock 4-4 in important cases, which would automatically uphold the relevant appellate court decision and allow for different controlling law in different circuits).

  2. More importantly, if Specter wants to have any leverage at all for his NSA hearings, he needs a lever. Once Alito is through Judiciary, he won't have one. What will provide the incentive for the administration to cooperate? Nada.

    This administration's principals regard governmental secrecy and aggrandizement of executive power as virtual sacraments. They will simply stonewall if there is no cost to so doing. Remember Ashcroft's testimony shortly after the torture memo was leaked? He refused to answer Senators' questions, and he also declined to explain why -- he wouldn't even say that he was relying on executive privilege.

    Principals of this administration do not seem to believe they are subject to the rule of law, provided that they parrot the words "Commander in Chief" loudly enough. They will not cooperate with any oversight on the NSA matter unless they are forced to, and no court can practically force them to do so.

    Since the House seems unlikely to begin impeachment proceedings (the ultimate imposition of political accountability available to the legislative branch), and since the Senate would be unlikely to convict in any case, senators who want to break their five-year streak of oversight-free behavior will have to find another way. Which means they will have to find some leverage.

    Justice O'Connor has characteristically provided something for everyone in her recent jurisprudence on executive power but has not been an administration pushover. What possible source of leverage could be more valuable in this context than a credible, open-ended threat to keep her on the bench?

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