Alito's hearing comes at right time to discuss presidential powers

The Senate Judiciary Committee opened its hearings into the nomination of Samuel Alito to the Supreme Court of the United States Monday in an ordinary fashion, with senators outlining their positions and Alito professing his devotion to the law.
But the hearing comes at an extraordinary time, when very real questions are being raised about the separation of powers in our constitutional democracy.
A few weeks ago, it appeared that the hottest issue for the committee and the full Senate to grapple with would be Alito's position on abortion. He is replacing Sandra Day O'Connor, who was the swing vote on the nine member court to preserve the essential elements of Roe v. Wade.
No doubt, questions about a woman's right to choose will be asked, especially since Alito has famously opined in favor of an overturned Pennsylvania law that would have required a woman to notify her husband before seeking an abortion.
But the revelation by The New York Times that President Bush has ordered electronic surveillance of U.S. citizens without seeking a warrant has put the accent on Alito's view of the Bill of Rights vs. presidential prerogative.
No shortage of topics
Actually, there is a shopping list of concerns that senators should be reviewing with Alito, regardless of their party affiliation. At the age of 55, Alito could be deciding issues that will affect Americans for decades. Given that, it is unseemly for some -- including President Bush -- to already be showing signs of impatience with the confirmation process. The Founding Fathers did not give the president sole power to place people in lifetime jobs on the courts. They gave the Senate the power to reject a presidential nominee, a power the Senate showed itself willing to use in the very early days of the Republic.
This is a nation founded on checks and balances and it is the duty of the legislative branch to question members of the judicial branch on how they view the limits of presidential power.
In recent years, this president has not only claimed the right to conduct surveillance without a warrant, he has claimed the power to hold citizens and noncitizens alike in jail indefinitely and without charge, simply by declaring them enemies of the state. He has taken an expansive reading of the Patriot Act and a restrictive reading of the Freedom of Information Act, as suits his purposes.
And then there are President Bush's bill-signing statements. This little-noticed device, used sparingly by other presidents, is being used by the president to aggressively assert his reading of a bill he signs by creating an addendum -- almost a redefinition of the law as seen from the president's eyes.
Such statements don't have the force of law, but they send a powerful signal to executive branch agencies on how the White House wants them to implement new federal laws. And, they are an obvious attempt to influence later judicial interpretations of a statute.
The most recent example was the approval by Congress of a law banning torture by a veto-proof margin. Bush signed the law, but said in his signing statement that he would interpret the law "in a manner consistent with the constitutional authority of the president," with the goal of "protecting the American people from further terrorist attacks." Even as he signed it, he was reserving the right to break it if he saw fit. And he was avoiding the possibility of having a veto overridden.
In five years, Bush has used signing statements expressing his reading over that of the legislature more than 500 times, on laws ranging from national security to the mundane.
By contrast, President Reagan challenged 71 legislative provisions, President Clinton, 105; and the first President Bush, 146.
Alito was there
This is a subject that Alito would know something about. As a Justice Department lawyer in 1986, Alito wrote a memo on a plan to expand President Reagan's use of signing statements. He expressed some reservations at the time; it will be interesting to hear what he believes now.
It would not seem that a true conservative or a strict constructionist would favor an imperial presidency. How Alito responds to questions about executive power could give more insight into his judicial intent than questions about abortion, affirmative action or separation of church and state.
But until he answers questions on all those subjects and more, no one in the Senate or the White House should be trying to set timetables for his confirmation vote.