Judging Judge Alito

ALTHOUGH SAMUEL A. ALITO JR.'s position on abortion rights garnered much of the attention in the aftermath of his nomination to the Supreme Court last fall, the top priority of senators at his confirmation hearing this week should be to ascertain whether the judge sufficiently appreciates the proper constitutional balance of power among the three branches of government.

It is a timely issue, as President Bush insists on expanding the executive branch’s power to conduct the war on terrorism. The administration has asserted the right to detain “enemy combatants” with no judicial review, for example, and to deploy, without any court warrant, wiretaps within the United States. As it has claimed these powers, the White House has also systematically sought to undermine the judicial branch’s traditional role of serving as a check on the government’s power to infringe on individual rights.

As Justice Sandra Day O’Connor eloquently stated in a Supreme Court decision reining in an instance of executive overreach: “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

There is reason to press Alito, who would replace O’Connor on the court, on whether he agrees with this statement. And it’s not simply because he is a conservative judge, which this president is legitimately entitled to nominate, or that he served for many years as a lawyer in the executive branch, as many of Washington’s best and brightest lawyers have done. It’s because Alito in the past has asserted a radically expansive theory of presidential power.


In 1986, when he served in the White House Office of Legal Counsel, Alito wrote a memo arguing that the president should issue “interpretive signing statements” when signing legislation. Courts have long looked at “legislative intent” when necessary to clarify the meaning of a statute, but in his memo, Alito argued that a “president’s understanding of a bill should be just as important as that of Congress.” Senators should ask Alito exactly what he meant by this. On its face, the assertion threatens to undermine the fundamental constitutional principle that it is for Congress to write the laws and for the executive to, well, execute them.

In contrast to his willingness to expand the powers of the presidency beyond its constitutional boundaries, Alito has been more traditionally conservative in narrowly defining the powers of Congress as set out in the Constitution. As an appellate judge, Alito notoriously wrote a dissent arguing that Congress does not have the power to ban machine guns. Senators should ask Alito to expand on his understanding of the federal government’s power to regulate interstate commerce, the source of much of its authority.

Oh, and yes, they should also ask him about his views on abortion rights.