Executive power front and center for Alito

The issue of presidential authority took center stage during Judge Samuel Alito’s confirmation hearing yesterday, playing a more prominent role than it has in any Supreme Court hearing over the past 25 years.

The issue of presidential authority took center stage during Judge Samuel Alito’s confirmation hearing yesterday, playing a more prominent role than it has in any Supreme Court hearing over the past 25 years.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and panel Democrats repeatedly challenged Alito about his views on the scope and meaning of presidential power while referring to the recent revelation that President Bush authorized the National Security Agency after the Sept. 11 attacks to monitor secretly the communications of people living in the United States.

Lawmakers asserted that the Foreign Intelligence Surveillance Act prohibits such domestic spying.

In the first round of questioning, committee members also largely dropped the debate over what types of questions the nominee should be compelled to answer. Alito’s extensive written record, including 361 legal opinions, prompted leading Democrats on the panel to ask fewer questions about how he would rule on various legal questions and instead spend much time on criticizing the nominee in lengthy speeches and questioning his past statements.

Leonard Leo, executive vice president of the Federalist Society and one of the White

House’s chief surrogates promoting Alito, said that, historically, the question of “executive power has rarely if ever been central” in Supreme Court confirmation hearings.

“It’s more prominent in this hearing than in past hearings,” he said, referring to the Senate confirmations of Justices John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and former Chief Justice William Rehnquist. He said that in the hearings for those justices the issue was not raised “anywhere as often or as extensively as it is here.”

But conservative and liberal activists and congressional aides who watched the hearing said that senior Democratic Sens. Patrick Leahy (Vt.), Edward Kennedy (Mass.), Joseph Biden (Del.), Herb Kohl (Wis.) and Dianne Feinstein (Calif.) delivered few solid blows. Moreover, lobbyists representing two liberal groups said that Republicans had done a good job of lowering expectations of Alito by reporting that during private meetings he did not perform as well as Roberts.

With expectations tempered, they said, Alito presented himself fairly well.

Glenn Sugameli, who works on judiciary issues for Earthjustice, an environmental group that has joined the Sierra Club in lobbying on the Alito nomination, called the lowering of expectations a “standard technique” and said that Alito had experience arguing before the Supreme Court.

An aide to a Democratic member of the so-called Gang of 14, the group of centrist Republican and Democratic lawmakers who will ultimately decide if the nomination is filibustered, gave Alito strong marks and said Democrats had initially failed to damage him significantly.

The emerging consensus among observers after the first few rounds of questions is that it will be difficult politically for Democrats to wage a filibuster against Alito.

Leahy, the ranking Democrat on the committee, Kennedy, Feinstein and Sen. Russ Feingold (D-Wis.), as well as Specter, grilled Alito over questions of presidential power. Feinstein even cut short her discussion of her signature judicial issue, protecting a woman’s right to an abortion, to ask Alito about the domestic surveillance law. By and large, Alito evaded the questions by saying that the issue was likely to come before the Supreme Court or the 3rd Circuit Court of Appeals, on which he currently sits.

Leahy asked about an Office of Legal Policy memo secretly crafted during Bush’s first term that sought to override laws prohibiting torture. Leahy asked whether the president has the power to immunize executive-branch agents from prosecution if they violate anti-torture laws and whether Bush had the power to ignore a law banning domestic spying, pointedly asking about a governmental burden to prove that such spying does not violate the Constitution.

Specter asked about the Bush administration’s assertion that it is exempt from the Foreign Intelligence Surveillance Act and whether Alito agreed with retiring Justice Sandra Day O’Connor’s claim in Hamdi v. Rumsfeld that war is not a blank check for the president when it comes to the rights of citizens. Specter also asked Alito if he agreed with former Justice Robert Jackson that when the president takes action incompatible with the expressed or implicit will of Congress his power is at its lowest ebb.

Alito said that he agreed “absolutely” that the war on terrorism did not constitute a presidential blank check and endorsed Jackson’s view of presidential activities in defiance of congressional will as a “very useful framework.” However, he said that it could not answer all questions about the scope of presidential powers.

“But this is a — these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation, perhaps before my own court or before the Supreme Court,” Alito said.

Democrats such as Kennedy and Sen. Charles Schumer (D-N.Y.) proclaimed themselves unsatisfied with Alito’s answers.

“Will this nominee stand up against the president?” Kennedy asked. “I defy anyone to give an answer based on this morning’s hearings.”

Schumer complained that Alito answered questions with “very broad generalities.”