WASHINGTON—Starting Monday, Samuel Alito's confirmation hearings for a seat on the Supreme Court will thrust him into a confrontation over whether a president can ignore Congress in the name of fighting terrorism.
The Senate Judiciary Committee hearings follow President Bush's admission that he authorized secret wiretaps on U.S. residents without court approval. Senators from both parties will grill Alito over the reach of executive power and the tension between national security and civil liberties.
Alito, who would replace retiring Justice Sandra Day O'Connor, also will face questions on his views of abortion, affirmative action and public prayer—all divisive social issues where O'Connor has been a key swing vote. As a result, Alito will face a more highly charged environment than Chief Justice John Roberts did in September, which puts extra pressure on Alito's performance.
And because Alito has an extensive 15-year record as an appellate court judge, plus a stint as a lawyer in the Reagan administration, his opinions are documented on a broad range of issues, and thus are fair game.
Sen. Arlen Specter, R-Pa., the committee's chairman, will set the tone from the start. He plans to ask Alito first about his legal views on abortion, then about the president's wiretapping program.
The limits of presidential power "will be front and center on the agenda," Specter said in an interview. But he said he planned to lead off with questions about access to abortions "because that's something that comes up in the daily lives of so many people."
Two days after Bush acknowledged the secret surveillance program, Specter was the first Judiciary Committee member to put Alito on notice in writing that he would be questioned about the limits of presidential power during times of war.
Sen. Lindsey Graham, R-S.C., a Judiciary Committee member, also said he intends to focus questions on issues of executive power.
"That's a very appropriate line of inquiry," he said in an interview. "In a time of war, what's his view of the executive's authority? When does Congress come into play? What is the role of the judiciary?"
Graham said it was "a stretch" for Bush to argue that Congress gave him broad authority to wiretap when it passed a resolution shortly after the Sept. 11, 2001, terrorist attacks authorizing him to use force in hunting down terrorists. "It will chill out future presidents' ability to get force resolutions if they overreach," he said.
Lawmakers from both parties want to protect civil liberties, and many jealously guard the power of the legislature. Alito's hearing may be dominated by such concerns because the Bush domestic-spying controversy erupted just before his Senate hearings. That may disadvantage Alito, because otherwise senators' views on issues such as abortion, affirmative action and public prayer tend to break along party lines.
Democratic strategists believe that bipartisan qualms over Bush's muscular assertion of presidential authority give Senate Democrats more freedom to question Alito aggressively and even vote against him. The spying controversy raises widespread concerns about privacy and government intrusion, making Democratic opposition less vulnerable to dismissal as mere partisanship, they believe.
The domestic spying program raises at least three distinct legal issues that senators may focus on: the scope of presidential power, the necessity for warrants, and whether authorities can be held liable for illegal searches.
Alito has a record in all three areas.
On presidential power, Alito has a scant judicial record, but Democrats and liberal groups have seized upon memos and speeches he has given that embrace the notion of broad executive power.
Alito has written that the independent counsel law was a congressional usurpation of presidential power.
In 2001 he gave a speech embracing a theory called the "unitary executive." Some conservatives say the theory is a simple recognition that the Constitution vests all executive authority in a single person, the president.
But liberals see the Bush administration's assertion of this theory in the context of the war on terror as a presidential power grab intended to curtail authority Congress holds under the Constitution, including the power to declare war and fund the military through Congress's power of the purse.
On the necessity for warrants and the extent of authorities' liability, Alito has a longer judicial record, one that suggests strong reluctance to curb government authority.
Alito has argued for relaxing the standards that require warrants for some government searches, in one case accepting as valid an 18-month wiretap that wasn't approved by a court.
Even when government authorities have overstepped the bounds of legal searches, Alito has argued—in both judicial opinions and prior memos—that most should not be held liable.
In several cases, Alito has sought to shield authorities from responsibility for conducting illegal searches. And in a memo he wrote while working in the Department of Justice, Alito argued that federal officials should always be shielded from lawsuits when they authorize searches in national security cases.
The stakes for Alito are arguably higher than they were for Roberts. As a nominee, Roberts was in line to replace the late Chief Justice William H. Rehnquist, one conservative jurist for another. In the end, 22 Democrats voted against him, 22 for him.
Alito has a longer record to defend, a more moderate justice to replace and a weaker president behind him. He also follows Roberts, whose self-confidence and intellectual bearing impressed even senators who voted against him.
"It's hard to find or conceive of a better nominee than John Roberts. And I think anyone who comes after him is going to suffer a little bit from the comparison," said Sen. John Cornyn, R-Texas, a member of the Judiciary Committee.
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Sen. Patrick Leahy of Vermont, the top Democrat on the Judiciary Committee, said the current composition of the court adds to the stakes of Alito's confirmation.
"You have nine members of the Supreme Court—seven appointed by Republicans, only two by a Democrat," Leahy said. "This case is especially important because Sandra Day O'Connor is stepping down and she has often been a swing vote to protect the individual. That places a heavy burden on Judge Alito to convince members that he will be independent."
(c) 2006, Knight Ridder/Tribune Information Services.
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