But he has reluctantly come to believe that Alito should not be confirmed, and that "this is a matter of real importance to the nation":
President 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 Fourth 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.Prof. Stone's full post, and the subsequent comments, are well worth reading.
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 Judge 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 of the United States.