January 11, 2006

We have heard a lot from Judge Sam Alito this week on various troubling issues in his record: his assertions in the 1980s that he was a proud opponent of Roe v. Wade, and a member of Concerned Alumni of Princeton--a group then-famous for its opposition to female and minority enrollment.

Senator Leahy made a good point on the CAP issue. Perhaps it's believable that Alito was, as he said, an inactive member of the group not well acquainted with its activities when he joined. But thirty years later, when he mentioned his "proud membership" in the group on his job application to the Reagan Justice Department, there is no way he could have missed the news that other prominent alumni, including Bill Frist, had denounced CAP's retrograde positions. "You are a very careful and cautious person," Leahy said. Alito must surely have taken great care with that job application, and knew the implications of everything he put on it. Lindsey Graham had the best line on that and other instances of Alito's faulty memory: "I hope you'll understand if some of us come before a court and we can't remember Abramoff, you'll tend to believe us."

Ted Kennedy brought out Alito's record as a federal judge upholding abusive law-enforcement officers' behavior: strip-searching a ten-year-old girl, and pointing loaded guns at an unarmed family, after breaking into a home to enforce an eviction order.

But we have still not heard Alito provide a satisfactory answer to a direct question about the most important issue hovering over these hearings: executive power.

Alito backpedaled on a phrase in his 1985 job application to the Justice Department when Kennedy quoted it to him: "I believe very strongly in the supremacy of the elected branches of government."

Alito said he regretted his choice of words. It was "poorly phrased," and in fact he believed, and always has believed, in the balance of power among equal branches of government.

But Kennedy went on, "Your record still shows . . . excessive, almost single-minded deference to executive power."

Most of the examples Kennedy gave were of law-enforcement power--the unreasonable searches in Doe v. Groody (the ten-year-old girl who was strip-searched) and other cases.

But he pointed out that the power of the executive under the Bush Administration is of historic importance.

After he was pressured into signing the McCain bill outlawing torture by American military and intelligence officers, for example, Bush issued a "signing statement" that cast doubt on his commitment to enforcing the law, asserting that the President reserves the right to act in accordance with his power as commander in chief.

"You were an early advocate of signing statements,” Kennedy said to Alito, urging Reagan to use them to limit the scope of bills he signed into law. "Is this what you had in mind?" Kennedy asked, when Alito said the "President's understanding of the law" was as important as that of Congress?

Alito only answered that signing statements are "unexplored territory." And he defended himself by explaining that he was a lawyer for the Reagan Administration and what he wrote merely reflected Administration policy.

Another important point Kennedy brought up was that Bush often uses the phrase "unitary executive branch" to defend his belief in an almost all-powerful executive. Alito, Kennedy noted, has called the unitary executive theory "gospel."

Alito explained his understanding of the "unitary executive" concept by saying that the scope of Presidential power is one issue and the importance of the President within the executive branch is another. His comments, he said, referred only to the preeminence of the President within the executive branch, and not the scope of his power in government.

But Alito never squarely said what he thinks of "signing statements," or the torture issue, or NSA spying, or the limits of executive power.

We need answers to these questions, urgently.