President Bush touts his appointments of Associate Justice Samuel J. Alito, Jr. and Chief Justice John Roberts to the Supreme Court bench lauding them as “strict constructionists.” In his speech congratulating Justice Alito for his confirmation , President Bush said:

“Sam Alito is a brilliant and fair-minded judge who strictly interprets the Constitution and laws and does not legislate from the bench.”

Of Chief Justice Roberts :

“He will strictly apply the Constitution and laws, not legislate from the bench.”

After all, a reactionary Court was a core purpose of Christian Fundamentalists’ support for Bush. He was merely a conduit; and he has delivered it unto them.

Right-wingers chastise “activist” (i.e. “progressive”) judges as banes on the judicial system.

With all this “strict construing” of the Constitution, I ask these people, where exactly in the Constitution, is the clause regarding Executive Privilege?

It’s not there. I checked.

Other than President Nixon, most presidents have avoided the constitutional conflict inherent in a claim of executive privilege. However, as we are all too well aware, President Bush is not one to avoid conflict. His administration has invoked executive privilege in the case about Federal Attorney replacements. Specifically the White House refuses to turn over documents and allow the unfettered testimony of former White House Political Deputy Sarah Taylor and former White House counsel Harriet Myers. More recently, Bush has gone so far as to claim executive privilege to justify withholding information regarding the death of NFL star Patrick Tillman.

The clear standards for executive privilege are put forth in United States v. Nixon Particularly:

“[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.”

Strict constructionism, can be defined as a judicial philosophy where a judge limits his or her decision to the text of the Constitution and related laws. The judge may not go any further. Conservatives’ arguments about Roe v. Wade and its progeny consistently entail the complaint that a woman’s right to choose is rooted in a fallacious interpretation of the Constitution. That fallacy being a “right of privacy” read into the Constitution beginning in Griswold v. Connecticut. Thus, a strict constructionist would be likely to strike down a woman’s right to choose.

If the right of privacy is out of bounds for strict constructionists why not then the claim of executive privilege? Like the fleeting concept of the right of privacy, there are no clauses regarding executive privilege in the Constitution.

Will the members of Supreme Court put their decision about executive privilege where their strictly construed mouths are? I am dubious. Usually the justices are presented with “A” and they come up with “Z” perfunctorily. “B” to “Y” is the crap they pull out of their robes a la Machiavelli.

Right-wingers should just fess up and admit strict constructionism is not a judicial philosophy – it’s purely a political, and more accurately, a moral, Conservative one.