Key question for Alito: presidential power

The confirmation hearings opening Monday for Judge Samuel Alito mark the official start in the long-awaited battle for the critical swing seat on the Supreme Court.

On the line are issues ranging from the scope of abortion rights and government regulation to how vigorously the federal courts will enforce civil rights. Judge Alito's 15-year record on the federal bench gives senators plenty to mine for signals on how he might rule on them.

But the Alito hearings also mark the reopening of a rare dialogue between the Congress and the other two branches of government over the balance of powers, especially in wake of disclosures of White House approval of surveillance without a warrant.

John Roberts, now chief justice of the United States, faced questions from senators on both sides of the aisle on the court's trend to rein in congressional power. For Judge Alito, a main concern will be whether Congress can curb executive power.

As he did in the Roberts hearing, Sen. Arlen Specter (R) of Pennsylvania, who chairs the Senate Judiciary Committee, will lead off with a question on abortion rights, aides say. But he plans to quickly segue to Alito's views on presidential power during times of war.

At issue: The program by the National Security Agency (NSA) to monitor international phone calls and e-mails between suspected terrorists and people in the US without first seeking a warrant. The Bush administration claims it had the authority to carry out the program based on a joint resolution of Congress after 9/11 that authorized the president "to use all necessary and appropriate force" against those involved in the attacks as well as his "inherent powers" as commander in chief.

"If the president has an inherent power to take necessary steps to protect the country, what Constitutional purpose does a use-of-force resolution, or a declaration of war, serve?" Senator Specter wrote in a Dec. 19 letter to Alito.

Senate math favors confirmation, but outside interest groups are mounting ad campaigns to sway senators in swing states, such as Maine, Rhode Island, Arkansas, Nebraska, and North Dakota.

"These hearings will be conducted in the Senate committee that is the ground zero for the culture wars, whose jurisdiction includes the most inflammatory issues of the day," says Ross Baker, a political scientist at Rutgers University in New Brunswick, N.J. "Members are under fierce pressure from interest groups, both left and right."

Democrats say that Alito can expect closer grilling than Roberts and will need to be more forthcoming, because he has a more extensive public record on issues such as executive power, congressional power, personal autonomy, and choice. Even under the so-called Ginsburg precedent, nominees answer questions on their opinions and published writings.

In the runup to Monday's hearings, Democrats tried to draw a link between President Bush's authorization of NSA wiretaps and a 1984 memo in which Alito, then an assistant to the solicitor general in the Reagan administration, wrote that he did not question whether former Attorney General John Mitchell should have blanket immunity from lawsuits for wiretapping Americans without a warrant in the early 1970s. But "for tactical reasons, I would not raise the issue here," he wrote, in documents released last month by the National Archives.

"He has endorsed in writing a truly vast power for the presidency," said Sen. Charles Schumer (D) of New York, a member of the Senate Judiciary Committee, in a speech on Capitol Hill Thursday. "Does he believe in any checks on presidential power? These issues have never been more important in light of revelations on warrantless wiretapping."

The issue of executive power resonates with some Senate Republicans as well, who broke with the White House last month on the extension of the USA Patriot Act, citing privacy concerns. And senators voted overwhelmingly to enforce a ban on torture in the interrogation of detainees, over a veto threat by Mr. Bush.

The hearings open at noon in the vast Hart hearing room, with opening statements from senators and Judge Alito, as well as introductions by Sen. Frank Lautenberg (D) of New Jersey and former New Jersey Gov. Christine Todd Whitman. Thirty-minute rounds of questioning begin on Tuesday and are expected to continue throughout the week, with a committee vote as early as Jan. 17

Unusually, witnesses will include a panel of judges from the US Court of Appeals for the Third Circuit, including Judge Edward Becker, who also worked closely with Specter and outside groups on a settlement on asbestos lawsuits.

"They will testify about [Alito's] approach to judging, as to whether he has an agenda, as to whether he is ideological, whether he pushes any specific point of view," said Specter, in a statement Friday.

While three of the eight Democrats on the Senate Judiciary panel voted with all 10 Republicans to confirm Judge Roberts, the Alito vote is likely to be down party lines, say court watchers. If so, then the outcome comes down to whether Democrats mount and can sustain a filibuster, a procedural move to block a final Senate vote on the nomination.