Alito Hearings Conclude

Final Day Focuses on Nominee's Views on Executive Power

As Senate Republicans appear to have mustered ample votes to place Samuel A. Alito Jr. on the Supreme Court, his confirmation hearings ended yesterday with Democrats and like-minded legal scholars condemning his theory of presidential powers -- a dominant theme throughout the hearings that was aimed at President Bush as much as at the nominee.

"In recent years, the Bush administration's made unprecedented claims of expansive presidential power," said one of the morning's witnesses, Erwin Chemerinsky of Duke University's law school, who said it would be "too dangerous" to allow Alito on the high court because of what he called "a very troubling pattern of great deference to executive authority."

Alito's allies protested such twin assaults on the White House and the nominee. His onetime boss in the Reagan Justice Department, former solicitor general Charles Fried, testified that Democrats' portrayal of the beliefs about presidential power had been "very misleading."

Judiciary Committee Chairman Arlen Specter (R-Pa.) said it was not surprising that an obscure theory of how much power the nation's chief executive wields, espoused by both Alito and the president who nominated him, had emerged as a core issue during the week-long hearings. "It spills over into right of electronic surveillance and executive power on so many other lines," Specter said in an interview. "It's a very big, very important issue."

Specter has scheduled hearings into recent revelations that Bush has ordered secret surveillance of U.S. citizens.

Still, moments before the confirmation hearings ended, Specter, a moderate who supports abortion rights, said he will vote for Alito's confirmation. His endorsement, with cameras running, came more swiftly than his announcement in September that he would support the confirmation of now-Chief Justice John G. Roberts Jr. This time, Specter acknowledged what both GOP and Democratic senators have been saying for days: The vote on Alito, unlike that on Roberts, is likely to be close and partisan.

The timing of that vote remained uncertain, with Specter pushing for a committee vote on Tuesday and the committee's ranking Democrat, Sen. Patrick J. Leahy (Vt.) saying he wanted to exercise his party's prerogative to postpone the committee action -- and thus debate in the full Senate -- for a week. The Senate's Democratic leaders are eager to defer the committee's decision until after their party caucus convenes on Wednesday, and -- anticipating Alito's confirmation -- they would like to deny the White House a prominent victory as long as they can before Bush delivers his State of the Union address Jan. 31.

With a majority in the Senate, Republicans believe they can push through Alito's confirmation, unless Democratic opponents mount a filibuster. The likelihood of such a tactic decreased yesterday when Sen. Mark Pryor (D-Ark.) became the second of the seven Democrats in a bipartisan group of 14 senators -- who last spring negotiated a compromise on the chamber's handling of filibusters on judicial candidates -- to say he did not believe Alito's nomination presented any "extraordinary circumstances" to warrant such a step.

In keeping with custom, Alito did not attend the hearings' final phase yesterday, in which prominent legal scholars, former law clerks and leaders of advocacy groups took turns telling the few Judiciary Committee members who were present why the nominee deserved to be confirmed -- or not.

The witnesses debated Alito's stance on abortion and civil rights, but -- as they had all week -- many of the sharpest exchanges involved his views on the legal theory, in favor with the Bush administration, known as the "unitary executive."

Two decades ago, the theory was embraced by advisers to President Ronald Reagan, who, as he sought to deregulate the economy, was looking for legal justification to compel agencies across the government to adopt new practices. The Constitution does not explicitly give the president power to order independent agencies -- those created by Congress but located in the executive branch -- to adopt new regulations. That administration held that a president can dismiss federal employers who resist his interpretation of how to carry out federal laws.

"The idea was that the president is responsible for the execution of all federal law, so he can't have independent people running around saying, 'I think federal law means B, when the president says it means A,' " said John Yoo, a conservative law professor at the University of California at Berkeley who has written a book on the subject.

The Reagan-era debate over the theory culminated in a battle over whether a president could fire an independent counsel, given a law Congress had passed after the Watergate scandal to provide for independent investigations of high-level executive branch officials. The law prohibited the president from firing an independent counsel except for cause.

As a Justice Department lawyer, Alito helped to challenge the law in Morrison v. Olson. The case went to the Supreme Court, which upheld the law. In a 1989 speech to the Federalist Society, a conservative legal group, Alito criticized the ruling, saying the court had "hit the separation of powers about as hard as heavyweight champ Mike Tyson usually hits his opponents."

Bush has expanded the unitary executive theory, relying on it to defend his power to pursue controversial policies to try to deter terrorism. Administration officials have argued that, as commander in chief, the president has inherent powers not explicitly stated in the Constitution that Congress cannot take away. The administration has used the argument to justify a recently disclosed program in which it has carried out electronic surveillance on U.S. citizens and residents for the past four years without a warrant, despite a 1978 law that makes it illegal for the government to conduct such surveillance in the United States without a judicial warrant from a special court created to weigh such requests.

During the hearings, under close questioning by committee Democrats, Alito drew a distinction between the idea pressed by the Reagan administration and that of the Bush administration. Alito also testified that a phrase he used in a 1985 application for a promotion within the Justice Department -- asserting "the supremacy of the elected branches of government" -- was "inapt." He said a president has to obey the Constitution and federal laws but did not directly answer whether a president has unlimited power to disregard a statute he considers unconstitutional. Sen. Edward M. Kennedy (D-Mass.) called the theory radical. "If we go down this route," he said in an interview, "you'll get to an entirely different relationship between the president and the Congress."

Staff writer Charles Babington contributed to this report.