Alito to be grilled on NSA wiretaps

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Democrats yesterday said that if Judge Samuel A. Alito Jr. wants to be confirmed to the Supreme Court, he must explain his past support for broad presidential power and whether he would allow warrantless wiretapping of the kind practiced in a recently disclosed NSA program.

Judiciary Committee hearings begin Monday, and Republicans said that the focus on National Security Agency wiretapping comes after earlier efforts to attack Judge Alito on abortion or his ethics and that it shows the Democrats are casting about for an excuse to oppose Judge Alito.

A committee vote had been expected Jan. 17, but Democrats said yesterday that some senators are talking about using their right under committee rules to delay the vote by a week.

Jim Manley, spokesman for Senate Minority Leader Harry Reid, said his boss indicated to Majority Leader Bill Frist that a delay is possible, but no decision has been made.

A delay, which Democrats did not seek in last year's committee vote to confirm Judge John G. Roberts Jr. as chief justice, would indicate they plan to take a stronger stand against Judge Alito.

Sen. Edward M. Kennedy said yesterday that Democrats should keep open the option of filibustering Judge Alito's nomination, even as other Democrats have said they do not think there will be a filibuster.

"I don't think there's any disposition now to alter and change what is the existing rights of members with regard to a nominee," the Massachusetts Democrat said. "I don't think it's either wise for members to try to outline a strategy other than to make sure these hearings are comprehensive and they're done with dignity and respect for the nominee, and then the future will take care of itself."

He and fellow Judiciary Committee member Sen. Charles E. Schumer, New York Democrat, said they will raise the issue of President Bush's having authorized the wiretap program and ask Judge Alito how it squares with his view of presidential power.

"There are times when individuals or executives believe that they are beyond or above the law in terms of eavesdropping or spying on the American people," Mr. Kennedy said. "I believe now is one of those times and am concerned that Judge Alito's statements, writings, and decisions suggest an unmistakable tendency to favor strong executive authority."

Mr. Schumer said Judge Alito gave a speech in 2000 to the conservative Federalist Society that shows he subscribes to a view that affords the executive branch strong powers.

"It's very hard to imagine, unless he distances himself from that view at the hearings, that he would accept any congressional right to regulate wiretaps of any kind," the New Yorker said in a speech yesterday.

Sen. Patrick J. Leahy of Vermont, the panel's top Democrat, announced his party's list of witnesses for the hearing and put "the scope of presidential power and the judiciary's role as a check and balance on that power" at the top of the list of "vital issues facing the nation today" about which they plan to ask Judge Alito.

Sen. John Cornyn, Texas Republican and committee member, said questions about Judge Alito's positions on executive power are fine, but said some Democrats are acting like opponents in search of a reason.

"I'm convinced that there's a hard core of at least 22 senators who will never vote for a nominee of this president and who will look for ways to justify that vote," Mr. Cornyn said.

He also said both Democrats and Republicans will ask about executive powers and the wiretaps, but said he does not think Judge Alito will answer many specific questions because he won't want to give a prediction about how he would rule on a specific case or hypothetical set of facts.

He said he expects Judge Alito to get an up-or-down vote, not be filibustered, and be confirmed with bipartisan support.

But Mr. Schumer said there are still enough questions among many Democrats and some Republicans that Judge Alito could be defeated, and John Podesta, president of the liberal think tank Center for American Progress and former chief of staff under President Clinton, said Judge Alito's writings and speeches on presidential power have turned the NSA wiretaps into a hurdle.

"If he can't give them a clear sense of where he thinks the boundaries are on this, some of the swing votes in the Senate will be paying very close attention on this," said Mr. Podesta, who hosted Mr. Schumer's speech.

"There are some senators for whom Judge Alito's writings on abortion make him a non-starter and some who it makes him the greatest thing since sliced bread. But for the senators in the middle, my guess is that this question of executive power may in fact be a determinant that could swing their vote," Mr. Podesta said.