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Alito Replies Don't Rock Status Quo

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.

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.

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