Watching Patrick Leahy attempt to trap Judge Alito into saying something that would assist those arguing that FISA restricts the president’s Article II powers is painful. Like watching Jon Lovitz thinking to himself, “That’s the ticket! I won’t mention FISA! Then I’ll spring the trap!”
But not as painful as Leahy’s mangling of the “unitary executive” discussion. Leahy wants to turn the phrase “unitary executive” into some sort of talisman of unbridled executive power. In one instance, when Leahy sought to connect “unitary executive” and presidential signing statments, Judge Alito patiently explained “I don’t see any connection between the unitary executive and the weight that should be given [presidential] signing statements.”
At one point, had Leahy been listening, Judge Alito slipped and provided an opening, mentioning “settled” precedent with regard to Morrison, a case establishing the constitutionality of the now defuncy Independent Counsel statute. If Leahy, or any senator for that matter, would simply listen as opposed to drone, he might have asked, “What do you mean by ‘settled?’ ‘Settled’ as in Roe being settled?”
Surely some smart Dem staffer or activist heard it and groaned again at the incompetence of their front bench, and scribbled notes may lead another Dem back to those waters, but the moment will have passed, and Judge Alito will be able to respond with a careful “I was referring to the fact that the constitutionality of the old Independent Counsel statute was settled by that case, and no future challenge to that statute would have presented a new question,” or some such appropriate response.
The Dem senators aren’t any good at this because, bottom line, they aren’t that bright, and most are down-right slow.