Democrats see spying furor effect on Alito

WASHINGTON - 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.”

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