Alito Is Called 'Sensitive' to Executive Power

By Jo Becker
Washington Post Staff Writer
Saturday, November 5, 2005

Supreme Court nominee Samuel A. Alito Jr. once said that a Supreme Court decision upholding the creation of an independent counsel "hit the doctrine of separation of powers about as hard as heavyweight champ Mike Tyson usually hits his opponents."

Alito's remarks, delivered as an introduction to a 1989 debate sponsored by the conservative Federalist Society, offer a window into his thinking on the separation of powers, an issue that the Supreme Court regularly wrestles with but that seldom came up during Alito's 15 years as a federal appellate judge.

The post-Watergate law, which has lapsed, permitted the judiciary to appoint independent counsels to investigate high-ranking executive branch officials. It cleared the way for investigations into the Reagan administration's Iran-contra scandal as well as President Bill Clinton and Monica S. Lewinsky.

Alito said the 1988 ruling upholding the law undercut several important doctrines that had protected presidential power "from congressional pilfering."

Alito's views on presidential power are significant on several fronts, not the least of which is what deference the chief executive should getto conduct anti-terrorism efforts, legal analysts said. President Bush has claimed the right to try foreign terrorism suspects before military tribunals, an issue that may come before the Supreme Court this term.

The 7 to 1 ruling upholding the independent counsel law was written by then-Chief Justice William H. Rehnquist and seen as a blow to the Reagan administration.

The decision, Alito said, meant that any alleged infringements on the president's power "would be judged by whether, in the court's subjective view at the time, the encroachment went too far."

Justice Antonin Scalia, to whom some of Alito's critics have compared the judge, wrote "a brilliant but lonely dissent" in the case, Alito said, when he remarked that "this is not analysis. It is ad hoc judgment."

Alito also praised former solicitor general Charles Fried for winning "a great separation of powers victory" in a 1986 case that struck down a central provision of the Gramm-Rudman-Hollings Deficit Reduction Act.

The balanced-budget legislation had called for a comptroller general, whom Congress had the power to remove from office, to trigger automatic spending cuts in the event that certain deficit reduction goals were not achieved. But the Supreme Court struck down that provision as one that unconstitutionally encroached on the president's powers.

Former solicitor general Theodore B. Olson said that Alito's deference to presidential power in both cases is not surprising, given that Alito had served in the Justice Department's Office of Legal Counsel. A key duty of the Office of Legal Counsel is to prevent against encroachments into presidential power, he said.

"He's clearly sensitive to the issue," Olson said, "but as to how he would rule on any given case, I wouldn't draw any conclusions."

But Cass R. Sunstein, a liberal constitutional law professor at the University of Chicago, said that Alito's views are relevant to understanding how he may rule. "It's noteworthy that he shares the view of Justice Scalia, and it suggests that he has a quite broad understanding of presidential power," Sunstein said.

Senators on the Judiciary Committee are expected to press Alito on his views on presidential power and the war on terrorism, as they have previous nominees, when his confirmation hearings begin Jan. 9.

Democrats also signaled that they plan to question Alito about promises he made in his 1990 appellate court confirmation hearings to step aside in cases involving the Vanguard Group of mutual funds and Smith Barney Inc. Alito went on to rule in favor of Vanguard in one case and against a partnership involving Smith Barney in another. Alito invested in Vanguard funds and Smith Barney was Alito's brokerage house.

White House spokesman Steve Schmidt said Alito did nothing wrong because he did not have a substantial financial stake in the outcome of the cases.

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