The Alito hearings
A Times EditorialJudge Samuel Alito's position on Roe vs. Wade should not be the focus of this week's proceedings, but rather his views on executive power.
Published January 9, 2006
The Senate Judiciary Committee begins hearings today on the confirmation of Judge Samuel Alito Jr. to the U.S. Supreme Court. There is more at stake with this nomination than the selection last year of John Roberts as the new chief justice. Alito has been nominated to replace the court's centrist and swing vote, retiring Justice Sandra Day O'Connor. But his record as an appellate court judge and a Reagan Justice Department lawyer suggests he is not in O'Connor's mold and would pull the court to the right in some areas. The central question of the hearings: How far to the right would Alito take the court?
Just as in the Roberts confirmation proceedings, the attention of most special interest groups has focused on Alito's views o n Roe vs. Wade, the decision legalizing abortion. During Alito's 15 years on the 3rd U.S. Circuit Court of Appeals, he considered the abortion issue at least twice. In one case he voted to approve a spousal notification requirement that the Supreme Court ultimately disallowed, and in another Alito voted to strike down a law that banned so-called "partial-birth abortion," after the Supreme Court had similarly ruled.
This might seem like an even split, but some of his writings while at the Justice Department laying out an incremental strategy for eroding abortion rights raise questions about his constitutional view on this issue. Even so, the committee should not let this issue hijack the proceedings. There are more momentous issues deserving of its attention.
Since the terror attacks of 9/11, President Bush has been asserting sweeping new powers as commander in chief - powers that rival a monarch's in some cases. Most recently it was discovered that Bush approved a domestic surveillance program authorizing the National Security Agency to spy on Americans without court approval. Alito, if confirmed, would very likely be called upon to rule on the limits of presidential authority.
O'Connor wrote that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." But Alito has demonstrated exceeding deference to executive power.
In a November 2000 speech, Alito spoke approvingly of the "unitary executive" concept in which the president enjoys expansive authority under the Constitution. Bush has asserted this interpretation of our founding document as a basis for his arrogation of power. Alito said in his remarks at the time that he agreed with the unitary executive theory when he worked in the Justice Department and still does. Also, while Alito was in the Justice Department, he proposed the expanded use of presidential signing statements - expressions of the president's interpretation of the statute he's signing. To the detriment of Congress, signing statements would "increase the power of the executive to shape the law," Alito wrote in a 1986 memo.
Bush has issued such statements at least 108 times, including most recently when he signed the antitorture legislation sponsored by Sen. John McCain. Bush wrote himself a whopping loophole suggesting that he will abide with the amendment to the extent it was consistent with his duties as commander in chief.
Lower-level executive officials also get a friendly reception from Alito. According to a comprehensive analysis by the Washington Post , Alito sided with police and prosecutors and against criminal defendants in 30 of 33 cases examined. Alito rarely seemed to care if the accused was subjected to an illegal search or was the victim of poor lawyering.
Only when a company is challenging a federal regulation does Alito more often side with the plaintiff than the government, according to the Post analysis. Otherwise, he is typically willing to give government at all levels the ruling it seeks.
On federalism and Congress' power to regulate through the Commerce Clause, Alito seems allied with those conservatives who would put sharp limits on the ability of Congress to enact, among other laws, environmental protection and health and safety rules.
The confirmation process has devolved into a game of the nominee saying as little as possible in as many words as possible, while the senators pose for their ideological constituents. We hope Alito's hearings will be different, and that he will provide direct answers to questions fairly put to him. He deserves a fair hearing, and Americans deserve some answers.