By Lisa Sweetingham Court TV
WASHINGTON After lobbing more than 700 questions over three days at Supreme Court nominee Samuel Alito, many Democratic senators say they are still not convinced the judge deserves confirmation to the court. "The evidence before us makes it very hard to vote 'yes' on your nomination," Sen. Chuck Schumer (D-N.Y.) told Alito, noting the nominee's conservative stance on abortion and executive power from his behind-the-scenes work in the Reagan Justice Department. The judiciary committee went into a third round of questioning Thursday, probing the 3rd Circuit Court of Appeals judge further on his personal and judicial philosophies on subjects ranging from abortion to eminent domain to capital punishment. But the sharpest questioning of the day focused on Alito's views of presidential powers.
If confirmed to the high court, he may be forced to rule on the authority of the same man who helped lead him to that seat. "Senator, this is a momentous constitutional issue," Alito said. "I think it would be irresponsible for me to say anything on the substance of the question here." At issue is President Bush's 2002 directive allowing the National Security Agency to conduct warrantless domestic interception of international e-mails and telephone calls in an effort to track terrorist activity. Bipartisan criticism of the spying program focuses on whether Bush has violated the 1978 Foreign Intelligence Surveillance Act (FISA) requiring intelligence agencies to obtain warrants through a special secret court before tapping communications on U.S. soil. Bush says his power to circumvent the FISA court lies in Article II of the Constitution, which outlines the powers of the executive branch; he also claims that the post-Sept. 11 Congress authorized his administration to use all means necessary to fight the war on terror. Senators used Alito's past writings and speeches this week to illuminate his views on presidential power. As an assistant to the solicitor general in the Reagan administration, Alito argued on behalf of the government in a warrantless wiretapping case; as early as five years ago, Alito gave a speech to the conservative Federalist Society in which he supported the "unitary executive" theory, which states that all federal executive powers are vested in the president by the Constitution. However, Alito has repeatedly told senators that he believes war powers are divided between the executive branch and the Congress, and that the president is "not above the law." It is unclear how he views Bush's domestic surveillance program and whether it alters the balance between congressional and presidential powers. "I don't mean to suggest in any way that there would be a case where it would be justified or not," Alito demurred Thursday. "When the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly. And that's all I can say." Senators entered into a closed-door executive session Thursday afternoon to examine an FBI background check on the nominee. Alito does not take part in this routine session. Several members of the public gallery wore "Former Alito Clerk" stickers on their lapels. Retired and current federal judges offered testimony Thursday afternoon in support of Alito's nomination. "I've never seen a chink in the armor of his integrity," said Judge Edward Becker, who has served on the 3rd Circuit Court of Appeals with the nominee during Alito's entire 15-year tenure. More witnesses, including opponents of Alito's confirmation, will be heard from on Friday morning. Sen. Patrick Leahy (D-Vt.) declined to question the current judges, contending that their presence at the hearings might "create a difficulty for them" if Alito is confirmed and one day had to rule on cases that came up from their appealed decisions. Sen. Arlen Specter's (R-Pa.) office issued a press release stating there was nothing "unusual or inappropriate" about justices testifying in judicial confirmation hearings, citing former Chief Justice Warren Burger's testimony on behalf of Judge Robert Bork in 1986. Committee aides worked late Wednesday, searching for Alito's name in correspondence, minutes, canceled checks and other records contained in four boxes of archival files from the Concerned Alumni of Princeton, or CAP, a controversial conservative organization that opposed Princeton's admission policies for women and minorities. "Samuel Alito's name is nowhere to be found in any of the boxes," Sen. Specter announced at the opening of Thursday's session. The paper chase was in response to Sen. Edward Kennedy's (D-Mass.) demand Wednesday that the committee receive more information about Alito's membership in the now-defunct organization. Alito maintains no recollection of being involved in any CAP activities, despite having listed his membership on a 1985 Department of Justice job application. A majority-Republican Senate is expected to pave the way for Alito's confirmation to the High Court, putting him in the seat of retiring Associate Justice Sandra Day O'Connor, who has been the swing vote in cases involving politically charged social issues, including abortion rights and affirmative action. When asked of his impressions and self-comparisons with the first female justice, Alito called O'Connor "a pioneering figure," held in "great admiration by the American people," and someone who was dedicated to a "meticulous" consideration of the facts. "I would try to emulate her dedication and her integrity," Alito said, adding later: "I wouldn't flatter myself to say I can equal her in any of those ways, but I can certainly try to emulate the conscientious and dignified way she has gone about her judicial duties." |