Presidential Power Has Limits, Alito Tells Senators - New York Times

Presidential Power Has Limits, Alito Tells Senators - New York TimesJanuary 10, 2006
Presidential Power Has Limits, Alito Tells Senators
By DAVID STOUT

WASHINGTON, Jan. 10 - Judge Samuel A. Alito Jr. said today that he agreed with the principle that a president does not have "a blank check" in terms of power, especially during wartime.

"The Constitution applies in times of peace and war," President Bush's nominee to the Supreme Court said in the first round of questioning before the Senate Judiciary Committee. "The Bill of Rights applies at all times."

In the second day of hearings on his nomination to the United States Supreme Court, Judge Alito said preservation of individual rights is particularly important in wartime because that is when the temptation to abuse liberties in the name of national security is most dangerous.

Declaring that the Constitution "protects the rights of Americans in all circumstances," Judge Alito was addressing an issue that his critics have called very troubling: whether he would too easily embrace the concept of far-reaching executive power, as his critics say the judge's paper trail seems to indicate.

In agreeing that the president does not have "a blank check" in terms of power, even in wartime emergencies, Judge Alito embraced the language of the justice he would succeed, Sandra Day O'Connor, who so wrote in a decision that upheld the right of a prisoner held as an "enemy combatant" to use the courts to challenge the basis of his confinement.

The judge also testified that he would approach abortion-related cases with an open mind, that the Constitution is "a living thing in the sense that matters" in that its underlying principles do not change even as time and circumstances do, and that the views he espoused as a young lawyer in the administration of President Ronald Reagan - "a line attorney," as he put it - are by no means a preview of how he would rule as a justice.

"My general philosophy is that the judiciary has a very important role to play," Judge Alito said, adding that he saw it as "a limited role" that should never encroach on the duties of lawmakers.

Some of the sharpest questions about the limits of presidential power came from Senators Patrick J. Leahy of Vermont, the panel's ranking Democrat, and Edward M. Kennedy, Democrat of Massachusetts.

Mr. Leahy asked the nominee whether he agreed with President Bush's interpretation of the powers conferred on him by Congress after the attacks of Sept. 11, 2001, Judge Alito replied cautiously, asserting that "difficult and important and complex questions" attend the issue.

But, the nominee said: "No person in this country is above the law. That includes the president and the Supreme Court."

Mr. Leahy was probing the judge's views on the electronic surveillance undertaken by the National Security Agency in the aftermath of the Sept. 11 attacks. Apparently not satisfied with the nominee's replies, Mr. Leahy said half-jokingly, "Let's take an easy one." Could the president authorize someone to murder a person, the senator asked.

Of course not, Judge Alito said. "The president has to follow the Constitution and the laws," he said.

Judge Alito, who has sat on the United States Court of Appeals for the Third Circuit, in Philadelphia, for 15 years, said repeatedly that precedent in the law deserves great respect, and should be overturned only with great care. He was responding to questions from Senator Arlen Specter, the Pennsylvania Republican who heads the panel, who is an abortion-rights supporter and has expressed concerns that the Supreme Court might one day consider undoing its 1973 ruling that established a woman's right to choose.

Precedent is "not an inexorable command," but it deserves great respect, Judge Alito said. He was referring not just to abortion issues but to a defendant's protection against police interrogations, as set forth in the 1966 Miranda ruling.

Senator Kennedy was skeptical about the nominee's dedication to the rights of ordinary citizens. "Time and again, even in routine matters involving average Americans, you give enormous, almost total deference to the exercise of governmental power," Mr. Kennedy said, citing a case in which the judge upheld the validity of a warrant in which a 10-year-old girl was strip searched.

Judge Alito answered in a calm, precise tone. "Senator, I wasn't happy that a 10-year-old girl was searched," he said, emphasizing that he had felt compelled to rule as he did, on a highly technical issue, because he felt the law required him to do so.

A bit later, Senator Charles E. Grassley, Republican of Iowa, offered the nominee a chance to express himself. "Judge Alito, would you have any difficulty ruling against the executive branch of the federal government if it were to overstep its authority in the Constitution?" Mr. Grassley asked.

"I would not, Senator," the judge replied. "I would judge the cases as they come up."

Senator Herb Kohl, Democrat of Wisconsin, asked him if he still agreed that Judge Robert H. Bork, who was rejected by the Senate in 1987, was an outstanding nominee, as he wrote at the time. "He was and is an accomplished scholar," Judge Alito said of Judge Bork, emphasizing that he still does not agree with him on everything.

Judge Alito, who as a Reagan administration lawyer wrote that he disagreed with some of the Supreme Court rulings during the time of Chief Justice Earl Warren, indicated that he agreed with what was perhaps the most important decision of all: the 1954 ruling that outlawed public school segregation. The judge said that ruling corrected an erroneous interpretation of the Constitution's Equal Protection Clause that had persisted for more than a half-century.

Mr. Kohl was openly skeptical when the nominee said he could not say whether the Supreme Court was right to take the case of Bush v. Gore, in which it effectively handed the 2000 election to George Bush. "I really don't know," Judge Alito said, insisting that he had not studied the case as carefully as he would have if he had had to consider it.

"That was a huge case," Mr. Kohl said with a smile, adding that he found it hard to believe that the judge had not thought about the case a good deal.

Senator Joseph R. Biden Jr., Democrat of Delaware, told Judge Alito his nomination to succeed Justice O'Connor "goes beyond you."

"It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance, 5 to 4, 4 to 5, one way or another," the senator said, alluding to Justice O'Connor's role as a swing vote over the years.

The early assessment of the nominee's performance was split along party lines.

Three of the committee's 10 Republicans commented during a recess that the nominee had acquitted himself well. "It's clear to me that he is willing to be very forthright, that he appears to view his role as a judge very seriously and totally different from his position as a lawyer, divorcing any of his own personal views," said Senator Jon Kyl of Arizona, who was joined by Senators Jeff Sessions of Alabama and John Cornyn of Texas.

But Senator Charles E. Schumer, a New York Democrat on the committee, disagreed. "I don't think we've heard anything from the nominee except statements that every nominee would make," Mr. Schumer said, adding that he hopes the judge will be more specific.

Senators Leahy and Kohl and Senator Russell D. Feingold, also of Wisconsin, were the three Democrats who voted for the nomination of Judge John G. Roberts Jr., who won the committee's approval by 13 to 5 on his way to easy confirmation as chief justice.

Senator Leahy seemed concerned today about Judge Alito's membership in the Concerned Alumni of Princeton University, an organization that the senator said had resisted the admission of women and members of minority groups to the elite Ivy League institution. The nominee cited his membership in the group when he was applying for a promotion in the Reagan administration in 1985.

"Why in heaven's name, judge?" Mr. Leahy asked, seemingly incredulous that a man with Judge Alito's immigrant heritage and working-class background could have belonged to such a group.

The judge said that he had never active in the group's activities and that he had belonged chiefly because he disagreed with campus hostility to the Reserve Officers Training Corps in that Vietnam War era.

That back and forth afforded Senator Orrin G. Hatch, Republican of Utah, a chance to serve up a friendly question. The senator asked the nominee whether he was against women and minority groups in college.

"Absolutely not, senator, no," the judge replied.

"Tough question, Orrin," Senator Leahy interjected with a chuckle. "Tough question."

"Good question, though," Mr. Hatch retorted.