Abortion shares spotlight with executive power as top issue at confirmation hearing

WASHINGTON – Abortion was once expected to be the dominant issue in Samuel Alito's confirmation hearings.

But other matters have moved to the forefront, notably the exercise of presidential power in light of revelations that President Bush approved of eavesdropping on Americans without warrants.

The conservative Supreme Court nominee's past strong defense of executive power was challenged by Democrats at the opening day of his confirmation hearing on Monday before the Senate Judiciary Committee.

Even the panel's Republican chairman, Sen. Arlen Specter of Pennsylvania, voiced some concerns about broad presidential powers.

"The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act," Specter said. "This conflict involves very major considerations."

To be sure, Alito will be grilled closely on his views of the 1973 Roe v. Wade court ruling legalizing abortion when questioning begins Tuesday. But the outcome of those exchanges seems preordained.

Those on both sides of the aisle expect Alito to say that, while he may be personally opposed to abortion, he won't let his personal views interfere with his judicial responsibilities.

And he'll no doubt express the importance he attaches to Supreme Court precedent, while sidestepping any direct questions on how he might rule on abortion issues.

By contrast, the Bush administration's electronic surveillance program and its post Sept. 11, 2001, treatment of terror suspects amount to fresh material for a debate over the extent of presidential powers — and whether Bush has gone too far.

It's an issue that, one way or the other, will some day end up before the Supreme Court.

Opponents suggest Alito's views of presidential power are too broad.

"In an era where the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling," said Sen. Edward M. Kennedy, D-Mass.,

Several senators reminded Alito of the stance taken by Sandra Day O'Connor, the retiring justice he is seeking to succeed, on the subject of executive-branch powers.

O'Connor has voiced suspicion of broad presidential power, writing in 2004 that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

O'Connor is a moderate conservative who often has been the swing vote on the nine-member court on abortion and other social issues. Thus, the nomination has added significance, since Alito could end up moving the court to the right in a way that fellow conservative Chief Justice John Roberts did not.

Roberts was picked by Bush to replace the late Chief Justice William Rehnquist, a conservative.

In a 1984 memo, Alito, then with the Justice Department, argued that the attorney general should be immune from lawsuits when acting to protect national security — even if it included illegal wiretapping of American citizens.

Democrats on the panel are sure to ask Alito about that memo, as well as about a speech in 2000 in which he asserted that the Constitution's framers viewed the executive branch "as necessary to balance the huge power of the legislature and the factions that may gain control over it."

Republican Sen. Lindsey Graham of South Carolina told Alito the issue of executive power was "very important to me."

"In a time of war, I want the executive branch to have the tools to protect me, my family and my country," he said. "But also I believe even during a time of war, the rule of law applies."

Stephen Wayne, a presidential scholar at Georgetown University, said the issue of executive power may be far more important to the nation's policy-makers than to most Americans.

"I think the presidential power issue is one that has great congressional attention, but it doesn't involve the public nearly as much as the social impact of Alito's decisions," including on abortion, Wayne said.

Alito has a much longer judicial record to defend than did Roberts, having written some 361 opinions and voted in what Specter said were 4,800 cases.

"It has been my experience that the hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed," Specter said.

On Monday, the dance began.