Alito foes consider presidential powers the defining issue

WASHINGTON -- Senate Democrats began building a case yesterday against the Supreme Court nomination of Samuel A. Alito Jr. centering on his deference to executive power, setting the stage for next week's confirmation hearings to become a battle over President Bush's contentions that he can bypass torture and surveillance laws.

In separate appearances yesterday, three key Democrats on the Judiciary Committee said they plan to link Alito's past writings about executive power to an escalating dispute over Bush's expansive view of his constitutional power as commander in chief.

Senator Patrick J. Leahy, Democrat of Vermont, said Alito had argued for greater presidential powers as a young lawyer in the Reagan administration and had pushed for one of the legal mechanisms used by President Bush last week to assert the power to bypass congress-ionally approved legal limits on torture.

Senator Charles E. Schumer, Democrat of New York, said he plans to quiz Alito about a speech the nominee delivered to the conservative Federalist Society in 2000. In his speech, Alito endorsed a legal theory that calls for stronger presidential control of government operations and a reduced role for Congress.

Senator Edward M. Kennedy, Democrat of Massachusetts, cited a 1984 memo Alito wrote saying that an attorney general should be immune from a lawsuit over illegal wiretapping. Alito's support for circumventing wiretap laws is significant in light of the disclosure that Bush has authorized wiretapping of Americans' international calls in spite of a 1978 law that required warrants for such surveillance, Kennedy said.

''Is there any limit to executive power and authority that this nominee will recognize?" Kennedy said. ''The executive power issue is front and center now. The American people are very sensitive to where this is all going and whether there is going to be accountability. They want to do what's right in terms of their security, but they want" oversight.

But defenders of Alito yesterday rejected any connection between the nominee's past writings and the current disputes over Bush's powers. They predicted that a strategy of focusing on executive power issues would fail to convince a majority of senators or the public that Alito should be rejected.

Senator John Cornyn, a Texas Republican who serves on the Judiciary Committee, said Alito's record is being mischaracterized by Democrats who have already decided that they will vote against his confirmation.

''Impartial observers have noted that Judge Alito is not an ideologue," Cornyn said. ''He's not a revolutionary. He's really a mainstream judge who applies neutral principles to the facts before him."

And Ed Whelan, a former Justice Department official in the Bush administration who has been a leading Alito supporter, called the Democratic effort ''incredibly strained." He said there is no real ''linkage between anything Alito has said or done" and the Bush policies now in dispute.

But Schumer said questions about the limits of presidential power could resonate across partisan lines at Alito's hearings. ''On these types of issues of executive power, you are going to find questions not just among more moderate Republicans, but also among very conservative Republicans," Schumer said.

At least 10 Republican senators -- including Arlen Specter, Judiciary Committee chairman -- raised objections last month after the disclosure that Bush had authorized the wiretapping of Americans.

And this week, after Bush contended that he could waive the torture ban to protect national security, the three GOP senators who sponsored the law -- including Judiciary Committee member Lindsey O. Graham of South Carolina -- condemned the president's view of his powers.

Bush asserted that he could waive the torture restrictions in a ''signing statement," an official document recording a president's legal interpretation of a new law. Bush had resisted the torture restrictions, but Congress approved them by such a large majority that he could not veto the bill.

In the past, presidents rarely issued such legal statements when signing bills. But in 1986, when Alito was working for former attorney general Edwin Meese III, the future nominee proposed that President Reagan issue signing statements more frequently.

Alito contended that courts sometimes research congressional statements and reports when trying to interpret the intent of an ambiguous law. Alito proposed that the more frequent issuing of signing statements by presidents would ''increase the power of the executive to shape the law" by leaving a record of the president's view. ''Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," wrote Alito.

Leahy said yesterday that he plans to connect Alito's 1986 memo to Bush's use of a signing statement last week to assert an interpretation of the torture law that clashed with the intent of Congress. ''It is disturbing that President Bush seeks authority to dictate the interpretation of laws written and passed by Congress," Leahy said. ''Tellingly, this president's current choice for the Supreme Court was instrumental in developing this strategy 20 years ago while serving in the Meese Justice Department. I will be interested to hear Judge Alito's current thoughts on presidential signing statements as a device to expand presidential power and to minimize congressional intent."

But Meese said in a telephone interview that there's nothing wrong with the idea that presidents should leave a record of their understanding of new laws. In addition, he said, Alito was simply carrying out administration policy.

''All Alito was doing as a subordinate member of the Department of Justice was . . . contributing his legal scholarship to the departmental policy at the time," Meese said. ''He's demonstrated as a judge that he's going to follow the law and the Constitution and that he's not going to be beholden either to the executive or to the legislative branch."

Senate Democrats also sought to capitalize on current events during last fall's confirmation hearings for Chief Justice John G. Roberts Jr., which occurred shortly after Hurricane Katrina exposed dire poverty along the Gulf Coast. That time, Democrats were unable to gain traction for their argument that Roberts's privileged background meant he would be callous toward disadvantaged Americans.

But this time, Kennedy said, Democrats can raise strong questions over ''whether the average person is going to be able to get a fair shake" before Alito in a case challenging government power.

''There's a much greater record with regard to Alito than there was with regard to Roberts," Kennedy said.