Supreme Court Nominee Samuel Alito meets with Senator Kennedy in Washington
Joshua Roberts  /  Reuters file
Samuel Alito faces the cameras along with Sen. Edward Kennedy, D-Mass., at a Nov. 15, 2005 courtesy call Alito made to Kennedy's office.
By Tom Curry National affairs writer
updated 1/5/2006 3:52:03 PM ET 2006-01-05T20:52:03

Will Judge Samuel Alito’s nomination to the Supreme Court suffer “collateral damage” from the controversy over Bush administration eavesdropping on al-Qaida contacts inside United States?

The surveillance conducted by the National Security Agency has sparked a loud debate in Washington over how much power the president should be permitted in wartime.

That will be a dominant question in next week’s confirmation hearings for Alito, according to Sen. Russ Feingold of Wisconsin, a Democratic member of the Judiciary Committee who will be one of those grilling Alito.

“With these (NSA surveillance) revelations, I’d be surprised if it wasn’t one of the most important topics,” he said Wednesday.

“Given the urgency of this issue and given how difficult these matters will be for the Supreme Court, this will be one of the principal tests for me as to whether or not I believe Judge Alito has the capacity to look at these matters as a justice of the Supreme Court, as opposed to a court of appeal judge or opposed to somebody who worked in the executive branch,” Feingold said. (Feingold voted to confirm the nomination of Chief Justice John Roberts, one of 22 Democratic senators to do so.)

Alito, a former Justice Department official in the Reagan administration, has served on the U.S. Court of Appeals for the Third Circuit since 1990.

Kennedy sees  Bush as Nixon
Speaking to reporters Thursday, a leading critic of Alito, Sen. Edward Kennedy, D-Mass., painted a picture of the Alito battle as a referendum on Bush’s expansive definition of presidential power. In Kennedy’s view, Bush is a latter-day Richard Nixon and Alito plays the role of Nixon’s loyal supporter.

“We have seen historically where presidents have believed they were above the law,” Kennedy said. “We saw that with Richard Nixon in Watergate and we saw that we Harry Truman in the steel seizure (case during the Korean War).”

Kennedy accused Alito have having “a similar kind of thinking about the unfettered, unlimited power of the executive,” which the senator said was revealed in a 2002 memo written by former Bush Justice Department official Jay Bybee.

The Bybee memo, which the Bush administration disavowed in 2004, said that a U.S. official or soldier accused of violating the federal torture statute could invoke national defense to avoid prosecution if, for example, an impending terrorist attack threatened the lives of Americans.

Pointing to a 2000 speech by Alito in which he endorsed a strong executive branch, Kennedy said, “Is there any limit on executive authority which this nominee will recognize?”

Lieberman is non-committal
Sen. Joe Lieberman, D-Conn., was more guarded in his comments. “I’m not reaching conclusions yet,” Lieberman said Thursday. “I’ve been reading (Alito’s) cases. I’m going to make my decision after the hearings.”

Far removed from the executive branch in his perch on the appeals court in Newark, N.J., Alito had nothing to do with Bush’s eavesdropping program.

But Alito is now Bush’s proxy, the most visible target for senators looking to send a signal that presidential power must be curbed.

Feingold and other Democratic senators will likely be chary of giving Bush a landmark victory by confirming Alito at a time when some of them think he has assumed too much power.

Politically, it is too soon to tell if the NSA surveillance helps or hurts the opponents of Alito’s nomination. Poll results on the issue differ, depending on the framing of the question.

Vice President Dick Cheney defended the surveillance in a speech Wednesday, saying, “There are no communications more important to the safety of the United States than those related to al-Qaida that have one end in the United States.”

Cheney: Surveillance is constitutional
He added that surveillance was “totally appropriate and within the president's authority under the Constitution and laws of the country. ... This wartime measure is limited in scope to surveillance associated with terrorists; it is carefully conducted; and the information obtained is used strictly for national security purposes.”

He also said he and other Bush administration officials had briefed congressional leaders more than a dozen times on the NSA surveillance.

Alito will likely invoke the argument that litigation over the surveillance may come before him if he is confirmed as a Supreme Court justice, and therefore he can not comment on it.

But in a Dec. 19 letter to Alito, Judiciary Committee chairman Sen. Arlen Specter, R-Pa., told Alito he’d ask him during the hearings whether Bush had the constitutional authority to order the NSA surveillance.

And Alito also will likely face senators’ questions on a past connection he himself had with surveillance.

More than 20 years ago, while serving in the solicitor general’s office in the Justice Department, Alito wrote a memo supporting the position held by the Carter administration and by the Reagan administration that former Attorney General John Mitchell ought to have immunity from lawsuits stemming from domestic national security wiretapping that he ordered in 1970.

“I do not question that the attorney general should have this immunity,” said Alito in his June 12, 1984 memo to his boss, Solicitor General Rex Lee.

But the Supreme Court ruled the following year that the attorney general was not immune from personal damage lawsuits in such cases.

Alito OK's FBI surveillance
Alito’s adversaries also point to a more recent case.

In 2004, Alito and another appeals court judge, Anthony Scirica, a Reagan appointee, ruled that FBI surveillance of the hotel room of boxing official Robert Lee, who was under investigation for taking bribes, was legal.

Under Supreme Court precedents, no search warrant was needed because one of Lee’s fellow boxing officials was cooperating with the FBI and consented to have his conversations with Lee taped. FBI agents manned video cameras day and night to monitor Lee’s conversations with the informant.

The dissenting judge in that case, Theodore McKee, a Clinton appointee, said the Alito position was “simply not adequate given the importance of Fourth Amendment guarantees.” (The Fourth Amendment protects citizens from unreasonable searches.)

The surveillance in the Lee case gave the FBI an “Orwellian capability” which was “not subject to any court order,” argued McKee.

Senators’ concern about Bush assuming too much power in wartime also played a role, albeit a smaller one, in the Roberts confirmation hearings.

Will he stand up to Bush?
In his questioning of Roberts, Sen. Dick Durbin, D- Ill., asked how he could “convince the members of this committee and the American people… that you are willing to stand up to this president, if he oversteps his authority in this time of war, even if it's an unpopular thing to do.”

In reply, Roberts summoned up the example of Justice Robert Jackson, who Franklin Roosevelt appointed to the high court in 1941.

Roberts said that, as Roosevelt’s attorney general, Jackson had been “someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. ... One reason people admire Justice Jackson so much is that, although he had strong views as attorney general, he recognized when he became a member of the Supreme Court that his job had changed. ... He was a justice sitting in review of some of the decisions of the executive.”

In 1952, Jackson joined the majority of justices in ruling that President Truman exceeded his powers as commander-in-chief in ordering the seizure steel mills during the Korean War. 

Expect Jackson to make a reprise appearance at the Alito hearings next week.

While the NSA surveillance has changed the climate for the Alito hearings, one thing hasn’t changed: The key votes are not Kennedy’s and those of other Democrats who voted against Roberts last September. They will almost certainly end up voting against Alito.

The votes that matter of those of Lieberman, other centrist Democrats, and centrist Republicans such as Sen. Susan Collins of Maine, who voted to confirm Roberts.

Pro-Roberts Democrats such as Lieberman will be all-important in the Democrats’ decision in the next few weeks whether to try to kill Alito’s nomination by means of endless debate, or filibuster.

Democrats would need 41 of their senators to sustain a filibuster.

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