Alito Replies Don't Rock Status Quo

And he said that he would adopt the "useful framework" of Justice Robert H. Jackson's 1952 opinion in the Steel Seizure case, in which the Supreme Court denied President Harry S. Truman the power to take over the nation's steel plants to keep up the flow of weapons to troops during the Korean War.

Under Jackson's opinion, Alito said, the president's power is in "a twilight zone" when he is acting contrary to a law passed by Congress -- exactly the situation that Bush critics say exists today in the NSA wiretapping.

He praised the steel decision -- and the 1973 Supreme Court ruling telling President Richard M. Nixon to turn over White House tapes to a grand jury -- saying they showed that sometimes "it is the responsibility of the judiciary to hold fast."

But when pressed by Sen. Patrick J. Leahy (D-Vt.) on the NSA issue, Alito demurred, saying: "I need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue."

He also declined to say whether a president could shape court interpretations of federal law through signing statements attached to acts of Congress. As a young Reagan administration lawyer, Alito wrote that "the president's understanding of a bill should be just as important as that of Congress."

Democrats have argued that Bush may have sought to reserve a right to override the recent anti-torture law in his signing statement on the measure.

But Alito played down his Reagan-era writings, saying that it was a "rough first effort" to outline a policy the administration had already chosen. As for the issue in current circumstances, he said only that it is "unexplored" by the Supreme Court and "not something that I have dealt with as a judge."

In response to questions from Sen. Edward M. Kennedy (D-Mass.) about a "unitary executive," a popular concept within the administration, Alito said that it refers only to "who within the executive branch controls the exercise of executive power."

But Alito seemed to put at least some distance between himself and recent White House legal positions claiming "inherent" constitutional authority to carry out NSA wiretapping without warrants. Alito said that the concept of a unitary executive "does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers."

Alito was willing to back off one of his earlier writings, a job application letter to then-Attorney General Edwin I. Meese III, in which he referred to the "supremacy" of Congress and the president over the courts.

"It's an inapt phrase," he said.