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 News from Around the Americas | January 2006 
Bush-Authorized Spying Spills into Alito Hearings
 Bloomberg
| | U.S. Supreme Court nominee Samuel Alito takes an oath at his Senate confirmation hearing on Capitol Hill in Washington January 9, 2006. The hearings promise to be bruising on U.S. President George W. Bush's nomination of Alito to the Supreme Court. Barring an unforeseen bombshell, the 55-year-old conservative was expected to be confirmed by the full Republican-led Senate later this month, and possibly move the nation's highest court to the right on social issues. (Reuters/Jason Reed) |
U.S. senators challenging Samuel Alito's Supreme Court nomination are focusing on a potentially combustible issue to raise at the confirmation hearings starting today: the limits of presidential power.
Senators say Alito's writings endorsing a strong executive have taken new significance since the disclosure that President George W. Bush authorized eavesdropping on American citizens without court approval.
A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.
Justice Sandra Day O'Connor
Democrats have decided the issue is so politically potent that they are leaving questions on abortion mainly to Republicans - a tactic that runs the risk of offending some of their strongest supporters. The intense focus on presidential power has unnerved some women's rights groups, which have traditionally played a central role in Supreme Court confirmation hearings.
Even two Republicans on the Senate Judiciary Committee, Chairman Arlen Specter of Pennsylvania and Lindsey Graham of South Carolina, say they will query Alito on the responsibility of the courts to constrain presidential authority. The spying "raises very fundamental questions about how we proceed to gather information, fundamental questions on privacy and the Bill of Rights," Specter says.
Replacing O'Connor
Bush nominated Alito to replace Justice Sandra Day O'Connor, a swing vote on a host of issues confronting the court and the author of a 2004 opinion that said Bush doesn't have a "blank check" to fight the war on terrorism. Alito, 55, spent a dozen years as an executive-branch lawyer before becoming a judge on the 3rd U.S. Circuit Court of Appeals in New Jersey in 1990.
Bush appeared with Alito in the White House Rose Garden today after a breakfast in the Oval Office, saying he hoped Alito would have "a dignified hearing" because he's "a dignified person."
The president told reporters that Alito is "imminently qualified" to be on the court and pointed to Alito's rating by the American Bar Association.
Leaders of both parties say that, while Alito is likely to win confirmation, he faces a much tougher fight than Bush's first high-court nominee, John Roberts. They also say how Alito performs at the hearings could significantly affect the final vote.
"There will be some issues" Alito must address, says Republican Senator George Allen of Virginia, while adding that the nominee "should come through" unscathed.
Senator Edward F. Kennedy, a Massachusetts Democrat, said yesterday on ABC's "This Week" that executive authority will be a central focus of the hearings.
Alito "has to answer questions about executive power and his views about executive power," Kennedy said. "Those issues are front and center in terms of the national dialogue."
Alito may not get more than a half a dozen Democratic votes, compared with the 22 who voted for Roberts. Republicans have a 55- 44 majority in the Senate, with one independent.
Filibuster Unlikely
Unless the hearings change these calculations, the only way to thwart the nomination would be a filibuster, a parliamentary tactic that requires only 41 votes and is considered unlikely.
"If this were tennis, you'd say advantage Alito," says Jeffrey Peck, a former judiciary committee aide who is now a lobbyist at Johnson, Madigan, Peck, Boland & Stewart in Washington. "He's going in with less support than Roberts had, but I think the hearings are going to be critical."
The prospect of a closer vote has energized the Democrats' political base. "Alito is no John Roberts," says David Bookbinder, a senior attorney in Washington for the Sierra Club, an environmental group that opposes the nomination. "This is not going to sail through."
Opponents say they will emphasize Alito's paper trail, including 300 opinions, to convince the American public he is outside the judicial mainstream. The strategy worked in 1987 with Robert Bork, another appellate judge whose high-court nomination was defeated in the Senate.
Biden Leads Charge
Senator Joseph Biden of Delaware has the assignment of leading the charge on executive power and what Democrats see as Alito's deference to governmental authority. While the Democrats plan to discuss abortion, they will leave much of the quizzing to Specter, an abortion-rights supporter, party strategists say.
Biden will focus on memos Alito wrote while working at the Justice Department in the 1980s and a speech he gave to the Federalist Society in 2000. In one 1984 memo, Alito argued that U.S. attorneys general should be immune from lawsuits for ordering illegal wiretaps.
In a 1986 memo, Alito said a president could guide judges in interpreting statutes by writing a statement to accompany legislation he signs into law. The same year, he argued that Internal Revenue Service attorneys, with Justice Department permission, could secretly record conversations with U.S. taxpayers under criminal investigation.
Senator Patrick Leahy of Vermont, the senior Democrat on the judiciary panel, says he will ask Alito whether courts should restrain presidential powers in wartime.
"The Congress has done very little to try to check the president's powers," Leahy says. "It's up to the courts."
Splintered Court
O'Connor wrote the lead decision for a splintered Supreme Court in a 2004 executive-power case, rejecting the Bush administration's policy of denying hearings for American citizens detained as enemy combatants. "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.
With Roberts replacing the late William Rehnquist as chief justice and O'Connor soon to depart, a new line-up will help determine the future of presidential powers. The court will decide in the current term whether the Bush administration can use military tribunals to try terrorism suspects.
Senators also vow to quiz Alito on redistricting, after the high court agreed last month to review a voting plan Texas adopted at the behest of former House Majority Leader Tom DeLay. Alito, who voiced opposition in 1985 to the Supreme Court's 1960s redistricting decisions requiring equal representation for all citizens, could cast a decisive vote if confirmed.
A Live Issue
Alito's thinking "becomes more important" because "it's a live issue that may be coming before the court," says Senator Russell Feingold, a Wisconsin Democrat.
A 1985 job application and a memo Alito wrote voicing his disagreement with the high court's 1973 Roe V. Wade decision legalizing abortion will prompt questioning about women's rights and respect for precedent, lawmakers say. Senators also plan to ask about Alito's 1991 dissent that said Pennsylvania may require women to notify husbands of plans to terminate pregnancies.
"He is in the pivotal position on most issues involving a woman's right to choose," says Senator Dianne Feinstein of California, one of the few Democrats who plans to raise the issue at Alito's hearing. "He really has an obligation to state what his views are."
Republicans argue that Alito's career as federal prosecutor, government official and jurist makes him exceptionally qualified for the high court.
"His integrity, his professionalism is becoming very, very evident," Alabama Republican Jeff Sessions says. "I don't think a 20-year-old memorandum and things like that represent a serious threat to his nomination." |
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