Analysis

Alito Replies Don't Rock Status Quo

Sen. Patrick J. Leahy (D-Vt.), left, confers with fellow Democrat Edward M. Kennedy (Mass.) during Day Two of Supreme Court confirmation hearings.
Sen. Patrick J. Leahy (D-Vt.), left, confers with fellow Democrat Edward M. Kennedy (Mass.) during Day Two of Supreme Court confirmation hearings. (By Melina Mara -- The Washington Post)

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By Charles Lane
Washington Post Staff Writer
Wednesday, January 11, 2006

On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring message: The country may be at war, but Americans' personal privacy and civil liberties will be safe with me.

Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee, the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary's role as a check on presidents who overstep their constitutional authority.

"The Bill of Rights applies at all times," he told the committee. "And it's particularly important that we adhere to the Bill of Rights in times of national crisis because that's when there's the greatest temptation to depart from them."

In an otherwise low-key performance, Alito seemed to bristle only once, when Sen. Russell Feingold (D-Wis.) asked if Bush administration officials had helped sculpt his answers about the White House's use of the National Security Agency to eavesdrop on some communications inside the United States.

"Nobody has told me what to say," Alito snapped.

But, like nominees before him, Alito was short on specifics, refusing to explain how he would rule on issues that might come before the court.

The nominee had to walk a fine line: He could not renounce his past opinions; he could not openly agree with Democratic critics of the president who appointed him; and yet he had to show that, on the court, he would not merely act as a rubber stamp for the president.

The discussion of executive authority reflected the changed political landscape since Oct. 31, when President Bush nominated Alito, 55, to succeed retiring Justice Sandra Day O'Connor. Initially, it appeared the battle over his nomination would shape up as a contest mainly over abortion, on which O'Connor has long held the balance of power within the court.

Instead, Alito finds himself campaigning for the job of wartime justice, a position in which he will be called upon not only to decide domestic social issues, but also to weigh momentous questions such as the scope of the president's authority as commander in chief, or the balance of power between the executive and legislative branches.

This has happened because the disclosure that Bush ordered NSA wiretapping, without prior judicial approval, has dominated headlines and fueled public debate about some of the steps Bush has taken in the fight against al Qaeda.

Alito's own generally pro-law enforcement record on the bench coupled with documents from his time as a young lawyer in the Reagan administration -- in which he appeared to endorse a robust view of the president's power against the other branches -- have created an opportunity for Democrats to suggest that he would be an unreliable guardian of liberty.

In seeking to dispel that notion, Alito emphasized cases from his 15 years on the U.S. Court of Appeals for the 3rd Circuit in which he ruled against law enforcement, citing repeatedly the example of a ruling in which he had upheld a black motorist's suit against police for racial profiling.


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