Alito Debate Focuses on Executive Power

Times Staff Writer

In an exchange of speeches that increasingly focused on presidential powers and whether President Bush had exceeded them, the Senate on Wednesday began formal debate on the nomination of Samuel A. Alito Jr. to the Supreme Court.

No date has been set for a Senate vote, although Democrats and Republicans have said they think it will be before the president’s State of the Union address Tuesday.

With no Democratic filibuster expected, Alito’s confirmation on a largely party-line vote appears all but certain. The judge from New Jersey met with Senate GOP leaders Wednesday to thank them for their support. Almost all of the chamber’s 55 Republicans and at least one Democrat, Ben Nelson of Nebraska, either have announced they are backing Alito or are expected to do so.

As a result, the debate over his nomination is increasingly serving as a showcase for two other controversies: warrantless eavesdropping on people in the United States and reauthorization of the Patriot Act.


“The reason presidential power issues have come to dominate this confirmation process is that we have clearly arrived now at a crucial juncture in our nation, and on our highest court, over the question of whether a president of the United States is above the law,” said Sen. Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee.

In their Senate floor speeches, Democrats complained that as a federal appellate judge, Alito appeared to defer to executive authority to such a degree that they feared he would acquiesce to presidential claims of expanded powers. At issue is Bush’s assertion that he had the right to bypass a special surveillance court and order National Security Agency wiretaps on people in the U.S. without obtaining warrants.

“The founders understood human nature,” said Sen. Hillary Rodham Clinton (D-N.Y.). “They got it. They knew that unchecked power would lead to abuses, and we’ve seen some of that right here in Washington over the last five years.”

Republicans accused Democrats of “smearing” Alito and unfairly representing his views. Sen. John Cornyn (R-Texas) described the focus on presidential powers as a canard.


“It is based on the claim that Judge Alito once endorsed an academic theory called the unitary executive,” Cornyn said. “But a unitary executive is not the same as an all-powerful executive. It is, after all, a theory that says there are three coequal branches of government -- executive, legislative and judicial. And each official within each branch is accountable to the people for the power they exercise and is delegated to them by the Constitution and laws of the country.”

Judiciary Committee Chairman Arlen Specter (R-Pa.) has scheduled hearings on the administration’s warrantless eavesdropping for Feb. 6. Atty. Gen. Alberto R. Gonzales is to testify for a full day on whether Bush had the legal authority to order the surveillance.

Democrats asked Specter to add other current and former administration officials to the roster for the hearing.

“I have nothing but praise for Sen. Specter for having these hearings and trying to get to the bottom of it,” said Sen. Charles E. Schumer (D-N.Y.), a member of the panel. “I’m just worried, if it’s only the attorney general and then some academic experts, we won’t get to the bottom of it.”


Meanwhile, Democrats on the Senate Intelligence Committee sent the panel’s chairman, Sen. Pat Roberts (R-Kan.), a letter demanding that he schedule a hearing on the wiretapping issue. The letter prompted a rapid and increasingly heated exchange between Roberts and the panel’s top Democrat, Sen. John D. Rockefeller IV of West Virginia, over whether and how the Intelligence Committee should review the controversy.

Roberts said he had already scheduled a briefing for members and put the issue on the committee’s agenda for discussion Feb. 16.

“I think we can all agree that intelligence issues, especially in the middle of a war, should not be used as fodder for political advantage,” Roberts wrote. “Doing so is unnecessary, unwise and potentially dangerous.”

Rockefeller responded that he and other committee Democrats had first requested a hearing five weeks ago, and that anything less than a full hearing was too little too late.


“There is no reason why our committee should wait another three weeks, in addition to the five weeks already passed, before we begin discussing how we should proceed,” Rockefeller wrote. “We should have scheduled committee hearings on this program long ago. Instead, our committee sits on the sidelines, unwilling to conduct the same oversight of this domestic surveillance program as we perform on all other sensitive intelligence programs of the NSA.”

Meanwhile, negotiations over reauthorizing the Patriot Act, which has been stalled by the NSA controversy, appeared to be making little progress. A short-term extension is set to expire Feb. 3, and a second such extension of several weeks or months appeared increasingly likely.

“We do not want to let the Patriot Act lapse,” Schumer said. “And if we can’t come to an agreement, we’re prepared to renew it for another period of time. And we hope that the Republicans will do the same.”

A Democratic filibuster, joined by a handful of Republicans, succeeded late last year in scuttling a new version of the law that civil liberties advocates said would authorize too much intrusion into Americans’ private lives under the guise of fighting terrorism.


Instead, both chambers of Congress approved a five-week extension of the current version, while continuing negotiations on possible changes. The original measure, designed to improve cooperation between law enforcement and intelligence agencies in terrorism investigations, was passed shortly after the Sept. 11 attacks.

Any new compromise would have to be approved by the House of Representatives, but House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) has said that his side of the Capitol would not accept any more changes.

“I know that there are discussions underway to try to get some additional changes made,” Specter said. “My own view is that those prospects are somewhere between bleak and nonexistent.”