Alito Hearings Begin Monday

The Senate Judiciary Committee opens hearings at noon on the nomination of Samuel A. Alito, Jr. to the US Supreme Court. Judge Alito's rulings cast him as a conservative; the question remains, what kind of conservative? He is replacing Sandra Day O'Connor, a conservative who often cast the swing vote in 5-4 cases. The Washington Post calls the hearings "a chance to try to tease out whether Judge Alito is a traditional conservative of the type who ought to be confirmed or an outlier or extremist who ought to be rejected."

Committee Chair Arlen Specter (R-PA) notes that "[t]his hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority." Specter is concerned about Alito's positions on abortion as well as judicial precedent, stare decisis. Another concern is his position on executive power, particularly since his nomination reaches public visiblity at a time when most of the nation believes President Bush was wrong to wiretap without a warrant.

Expect extreme rhetoric from both sides, including revival of last year's threatened "nuclear option" should Democrats threaten a filibuster. For example, from Sen. Rick Santorum (R-PA): "extremely liberal justices [are] destroying traditional morality." Sen. Ed Kennedy (D-MA) said, "The role of executive power [will be] an area of enormous importance and consequence during the course of this hearing because I believe that we have seen historically where presidents have believed that they are above the law. We saw that with Richard Nixon in Watergate."

Salon suggests that a key clue to Alito's opinion on executive power and privilege can be seen in a November 2000 panel presentation for the Federalist Society:

In his presentation, Alito argued strenuously in favor of a hail-to-the-chief legal theory called "the unitary executive." ... Briefly, what this theory argues is that every part of the executive branch (including regulatory agencies like the Federal Trade Commission and, yes, independent counsels like Kenneth Starr) should be legally under the control of the president. While Alito himself did not mention national security in his speech, other proponents of this theory -- notably Dick Cheney's new chief of staff, David Addington -- have leaned on it to argue that a president can go beyond the law in carrying out his duties as commander in chief.

On Friday, a Congressional Research Service analysis "said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978."

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