The Senate Judiciary Committee on Jan. 9, 2006, began U.S. Supreme Court confirmation hearings for President George W. Bush’s nomination of Judge Samuel Alito, Jr., of the U.S. Court of Appeals for the Third Circuit, to replace retiring Supreme Court Associate Justice Sandra Day O’Conner.  Since the attacks of Sept. 11, 2001, the legal system, including the U.S. Supreme Court, has been even more involved with national security than ever before.  Some issues already flagged by committee members in their opening statements on Jan. 9 included:

• rule of law during wartime;
• the Constitutional system of checks and balances and the judiciary’s role as a check on the power of the executive;
• executive power in the national security arena, balanced with congressional power under the Jackson concurrence in Youngstown Sheet & Tube v. Sawyer;
• presidential national security authority and civil liberties;
• warrant-less electronic surveillance of persons in the United States as part of the war on terror;
• indefinite detention of U.S. citizens as enemy combatants;
• torture;
• Geneva Conventions, Convention Against Torture, binding nature of ratified treaties;
• Alito’s military service, and his experience as a federal prosecutor pursuing terrorists, mobsters and drug kingpins.

Looking Back: the Roberts Hearings

Last year’s confirmation hearings for Chief Justice John Roberts took place even before allegations in the news media of secret overseas prisons, the enactment of Senate-originated detainee legislation, the legal roller coaster of alleged enemy combatant turned civilian defendant Jose Padilla, revelations of warrant-less communications monitoring based on presidential authority as commander in chief, and other issues.  Even before those stories started developing, the Judiciary Committee already delved into, or at least raised, a variety of national security issues.  Some examples from the Roberts hearings included:

• the Bill of Rights and civil liberties in wartime;
• the Foreign Intelligence Surveillance Act (FISA) national security court;
• executive power;
• separation of powers and the authority to start or stop a war, or declare its ending;
• Congress’s authority to issue regulations governing the Armed Forces;
• the Youngstown Sheet & Tube case and Justice Jackson’s concurrence setting out the landscape for balancing the power of the president with that of Congress;
• rights of detainees and associated judicial procedures, and the holding as an enemy combatant someone not charged with a crime;
• military commissions specifically;
• torture and U.S. obligations under international law;
• the Geneva Conventions;
• Korematsu and race-based mass relocation or mass internment during wartime, and the use of immigration laws to “round up” massive numbers of persons from particular ethnic groups in the war on terror;
• rights of U.S. servicemen tortured by the enemy to sue their former captors;
• military recruitment on college campuses as a condition of the college receiving federal tax dollars, in instances where college administrators oppose the military’s “don’t ask, don’t tell” policy.

Alito Hearings: Opening Statements

In their opening statements for the Alito hearings, the following senators raised issues relating to national security.

Sen. Arlen Specter, R-Pa.

After stating that no senator’s vote, other than a vote for a declaration of war or authorization to use force, was more important than a vote to confirm a Supreme Court nominee, Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., argued that the Alito confirmation hearings came at a time of “great national concern” over the balance between a president’s national security authority and civil rights.  Specter commented that there appeared to be a conflict between the president’s Constitutional powers as commander in chief to conduct electronic surveillance and the position taken by Congress in FISA (which in some cases requires warrants).

According to Specter, these concerns raise questions under Justice Robert Jackson’s concurrence in the Youngstown steel seizure case, in which President Harry S. Truman attempted to assert inherent executive authority to nationalize industries he argued impacted a war effort.  Specter quoted selected key portions of the Jackson concurrence:

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate…. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb ….”

Specter went on to quote: “… what is at stake is the equilibrium established by our constitutional system.” Id.

Sen. Lindsey Graham, R-S.C.

Sen. Lindsey Graham, R-S.C., raised the question of executive power and commented that in a time of war he wanted the executive branch to have the tools to protect the country. 

He added that the rule of law applies during a time of war, and also expressed concern that an overly expansive reading of an authorization of force might make it more difficult to get such authorizations in the future. 

This last point may conceivably have related to arguments by the Bush administration that warrant-less electronic surveillance of U.S. citizens making telephone calls originating in the United States, when alleged to be connected with terrorist activity, was justified in part by the Authorization for Use of Military Force (AUMF) passed after the attacks of Sept. 11, 2005, to the extent that signals intelligence is a natural incident of a military campaign.

Sen. Jon Kyl, R-Ariz.

Sen. John Kyl, R-Ariz., highlighted Alito’s military service as a member of the U.S. Army Reserves from 1972 to 1980, saying that if confirmed Alito and Justice John Paul Stephens would be the only justices with military experience.  He further highlighted Alito’s background as a federal prosecutor going after terrorists, mobsters, drug dealers “and others who threaten our safety and our security.” (All quotations from the hearings themselves, other than the language quoted above from the Youngstown Sheet & Tube Jackson concurrence, are from FDCH e-Media, “Transcript: U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court, Part I of II,” Washington Post, Jan. 9, 2006, http://www.washingtonpost.com/wp-dyn/
content/article/2006/01/09/AR2006010900755.html, or FDCH e-Media, “Transcript: U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court, Part II of II,” Washington Post, Jan. 9, 2006, http://www.washingtonpost.com/wp-dyn/
content/article/2006/01/09/AR2006010901016.html)

Sen. Patrick J. Leahy, D-Vt.

Ranking Judiciary Committee Democrat Sen. Patrick Leahy, D-Vt., argued that this is a time when the Bush administration “seems intent on accumulating unchecked power.” Therefore, he said, Alito’s views on executive power are especially important to know, and that it is important to determine whether Alito would serve with judicial independence to be a check on the executive.

Leahy argued that outgoing Supreme Court Justice O’Conner has been a “guardian of the protections the Constitution provides the American people,” and pointed to her role as author of the plurality opinion in Hamdi v. Rumsfeld. He characterized her Hamdi opinion as rejecting the notion that the government could hold a U.S. national in indefinite detention and upholding the fundamental principle of judicial review over the exercise of governmental power.

(Yaser Easam Hamdi had been held without charge on the basis that he was an alleged enemy combatant seized in an overseas conflict before being brought back to the United States for interrogation.  To bring an end to the case, the government deported Hamdi to Saudi Arabia, the land of his parents, under stipulations that he not leave Saudi Arabia.)

Leahy went on to highlight revelations that the Bush administration had, in Leahy’s words “outside the law,” been conducting secret and warrant-less “spying” on Americans for four years.  He pointed to a need for the Supreme Court to protect Americans’ fundamental rights as part of the system of checks and balances intended to constrain abuses of power.

Sen. Edward M. Kennedy, D-Mass.

Sen. Edward Kennedy, D-Mass., attacked Alito for, in Kennedy’s parlance, supporting an all-powerful executive branch in an era of executive abuse of power “excusing and authorizing torture and … spying on American citizens.”

He also raised questions about warrant-less electronic surveillance, sounding themes of checks and balances, and argued there was an absence of outside review.  Kennedy pointed to O’Conner’s holding that a state of war was not a blank check for presidential power, and stated his belief that the Supreme Court should serve as an independent check on executive power and a protector of liberties.

Sen. Herbert Kohl, D-Wis.

Sen. Herbert Kohl, D-Wis., pointed to the Supreme Court as making decisions that either protect the individual or leave him “at the mercy of … powerful forces in our society.”  Kohl went on to raise the question of when the government should be allowed to listen to a private conversation, perhaps a reference in part to controversy over warrant-less national security surveillance.

Sen. Dianne Feinstein, D-Calif.

Sen. Dianne Feinstein, D-Calif., raised questions about Constitutional checks and balances in the context of alleged torture, the Geneva Conventions and Convention Against Torture, the binding nature of ratified treaties upon presidential action, the detention of U.S. citizens and related due process issues in the light of the Hamdi case, and warrant-less surveillance of U.S. citizens in the light of the FISA legislation.

Sen. Russell Feingold, D-Wis.

Sen. Russell Feingold, D-Wis., stated that for four years the administration has been spying on Americans without a court order and without following laws passed by Congress.  He raised concerns about whether American government was subject to rule of law, and the need for a strong and independent judiciary.

Sen. Richard J. Durbin, D-Ill.

 

Sen. Richard J. Durbin, D-Ill., raised the concept of “unitary executive theory” which he said Alito had advanced, and inquired whether Alito would serve as a check on presidential “overreaching.”  Durbin raised concerns over the concept of the indefinite detention of U.S. citizens without charge, an apparent reference to enemy combatant issues, and raised concern over torture.  He cited the O’Conner plurality opinion in Hamdi that a state of war did not give a “blank check” to executive power.

Sen. Charles Shumer, D- N.Y.

Sen. Charles Shumer, D-N.Y., commented that as a Supreme Court justice Alito would “define our freedom … affect our security and … shape our law” and spoke to the need for the Supreme Court to serve as a check on executive power.

Links:

Hearing transcript, Day 1:

Part I:
FDCH e-Media, “Transcript: U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court, Part I of II,” Washington Post, Jan. 9, 2006, http://www.washingtonpost.com/wp-dyn/
content/article/2006/01/09/AR2006010900755.html

Part II:
FDCH e-Media, “Transcript: U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court, Part II of II,” Washington Post, Jan. 9, 2006, http://www.washingtonpost.com/wp-
dyn/
content/article/2006/01/09/AR2006010901016.html

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952, Jackson, J., concurring), http://www.law.cornell.edu/supct/html/historics/
USSC_CR_0343_0579_ZC2.html.

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