Questions over presidential power to dominate Alito hearings

In Samuel Alito’s Supreme Court confirmation hearings, traditional
hot-button social issues will share the stage with one that strikes a
more bipartisan nerve lately: the limits of presidential powers,
especially in wartime and on national security matters.

Alito is
a conservative and generally well-regarded federal judge who wrote an
infamous anti-abortion opinion and took several civil rights positions
Democrats don’t like. And if the bookish 55-year-old from New Jersey
becomes President Bush’s second nominee in recent months to be
confirmed to a lifetime spot on the nine-member high court, he could
give conservatives the balance of power on what for years has been a
divided court.

But it is the debate over executive powers, more
than abortion or affirmative action, which has dominated Capitol Hill
since last month’s revelations the president went around the courts to
authorize a secret program of eavesdropping on Americans. The
administration has said the surveillance program is helping prevent
another attack like those on Sept. 11, 2001, and that it focuses on
overseas calls involving people suspected of terrorist ties. Already,
the controversy has sidelined legislation to reauthorize surveillance
provisions in the USA Patriot Act that ease law enforcement officials’
constraints in domestic investigations.

In confirmation hearings
that began Monday, many senators say they want to know how Alito, who
in the past has strongly advocated for presidential powers, might weigh
in on challenges to such Bush administration programs.

“There is
no question that the question of executive powers in time of war and in
the context of the terrorist threat will be central to the Alito
hearings,” Sen. Russ Feingold, D-Wis., a member of the Judiciary
Committee and a leading critic of Bush’s eavesdropping program, told

Alito’s nomination doesn’t appear in jeopardy with
the Republican-led Senate, even as some Democrats hold out the
possibility of a filibuster attempt. The American Bar Association gave
Alito its highest rating, “well qualified.” The U.S. Chamber of
Commerce endorsed him. Several of Alito’s colleagues on the 3rd U.S.
Circuit Court of Appeals are scheduled to testify on his behalf during
his hearings. And, unlike White House Counsel Harriet Miers, who was
Bush’s first choice for the O’Connor spot but withdrew because of
Republican divisions over her qualifications, Alito has strong support
from the GOP base.

Nevertheless, lawmakers from both sides of
the aisle are preparing to question Alito on his views and his writings
on presidential questions.

“He should be asked about his views
of executive powers in times of war, what role the Congress has, what
role the courts have,” said Sen. Lindsey Graham, R-S.C., also a
Judiciary Committee member. “If he says, ‘During a time of war the
president can set aside any law on the books as commander in chief,’
that would be a very extreme, absurd view of the law. Something short
of that probably would not bother me.”

Judiciary Committee
Chairman Arlen Specter, R-Pa., who has called for hearings into the
eavesdropping program, told Alito in a letter last month to be prepared
to talk about the National Security Agency’s secret program. Nominees
typically decline during their confirmation hearings to say how they
might rule on a question that could come before them. But Specter said
Alito should discuss how, as a jurist, he would approach prospective
cases about presidential powers.

Alito’s hearings were scheduled to run through the week, with a full Senate confirmation vote to come as early as Jan. 20.

Retiring Justice Sandra Day O’Connor, whom Alito would replace, also is
a Republican but has been a swing vote on the nine-member court. And in
2004, it was O’Connor who penned the 8-1 majority opinion that said
detainees in the war on terror have a right to challenge their status
in court. “A state of war is not a blank check for the president when
it comes to the rights of the nation’s citizens,” she wrote.

“Do you agree with Justice O’Connor’s statement?” Specter’s letter asked Alito.

Alito doesn’t have a long record from the bench on presidential powers.
But in 1984, as a lawyer for the Justice Department under President
Reagan, he advocated administration officials should be immune from
legal action if their unauthorized spying is for national security

Liberal critics including People For the American Way
have seized on a more recent reflection of Alito’s mindset; in a 2001
event of the conservative Federalist Society, he said he continued to
believe in the idea of the “unitary executive.” That concept holds that
the Constitution gives the president all federal executive power, and
means Congress likely could not grant agency heads powers outside the
president’s reach.

David A. Keene, chairman of the American
Conservative Union, is among those conservatives critical of Bush’s
surveillance tactics and the impact on individuals’ free speech and
privacy expectations. But that has not cooled his support for Alito.

“The questions about the NSA and whether you want to reform the Patriot
Act are completely legitimate,” Keene said. “But I think they’re being
used here essentially by folks who want to attack Alito, as a cudgel to
beat him. You’re not going to get this guy to say, ‘If you bring this
case to me, I’ll find this way.’ Judges just don’t do that.”

When Chief Justice John Roberts was confirmed in September to replace
the late William Rehnquist, a solid Republican conservative, “Rehnquist
and Roberts were essentially the same,” Keene said.

“But we have
a very evenly divided court and Sandra Day O’Connor and Alito are
different _ or at least we may think they’re different. So he’s going
to be scrutinized much more. But if you look at the overall record,
this guy is a fairly cautious, mainstream judge with a long record.”