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Washington-If the Supreme Court takes up a challenge to the federal “partial birth” abortion ban and if Samuel Alito is the next justice, “we would carry the case on a 5-4 basis,” proclaims the Web site of the American Center for Law & Justice, a nonprofit law firm founded by evangelist Pat Robertson. If the high court gets an appeal from an 8th Circuit decision on the public display of the Ten Command- ments, “Obviously, if Judge Alito is confirmed, we will see a victory in the Ten Commandments cases,” adds the Web site posting by Jay Alan Sekulow, the center’s chief counsel. Many court scholars would agree with both claims, but few would disagree that there is much more at stake in this nomination than these two issues. The Senate Judiciary Committee this week opens hearings on the nomination of Alito, a judge for 15 years on the 3d U.S. Circuit Court of Appeals who, if confirmed, will succeed retiring Associate Justice Sandra Day O’Connor. The Alito hearings will not be swift and smooth, like last September’s John G. Roberts Jr. hearings, either in tone or substance. And they will not be the revealing hearings concerning Robert Bork of almost two decades ago because much has been learned by all parties from that landmark confirmation battle. The Alito hearings will fall somewhere in the middle of those two events, scholars and others predict, with the appellate judge likely to face tough questioning on a number of legal fronts because: Alito is replacing O’Connor, the high court’s swing vote in at least five areas of the law: abortion, church-state separation, federalism, affirmative action and death penalty/habeas corpus. In 2000, the last time the justices faced a constitutional challenge to a partial-birth abortion ban, they struck the Nebraska ban down, 5-4, with O’Connor providing the decisive vote. And just last term, in two Ten Commandment display challenges, O’Connor voted against both displays, prevailing in one 5-4 case and losing in the second 5-4 decision. Disclosures of warrantless, domestic electronic surveillance of U.S. citizens and others by the Bush administration may shift the dominant focus of the hearings away from controversial topics such as abortion to Alito’s views of executive power in general and the Fourth Amendment and privacy in particular. Unlike Roberts, who had only two years on the federal bench and a relatively small bank of opinions, Alito has behind him 15 years on the bench and hundreds of opinions providing fodder for committee members’ questions about his judicial philosophy and inclinations. And, unlike Roberts, who skillfully parried senators’ questions about legal positions he adopted in memos that he wrote as a young lawyer in the Reagan administration by suggesting that it was simply legal advocacy for his client, Alito, also a former Reagan Justice Department lawyer, will have to explain several memos on controversial issues in which he wrote that his legal positions were also strongly held personal beliefs. “There are many more doctrines in play here that people will try to question him about,” said judicial nomination scholar Michael Gerhardt of the University of North Carolina School of Law. “He also will be tested on whether he still believes what he said he believed in the memos. That requires him to account for what he said, but to do so in a way that doesn’t put his nomination at risk. “He still is probably on the path to confirmation,” added Gerhardt. “The odds favor him, but he’s got more work to do to maintain that advantage.” Peter Shane of Ohio State University Michael E. Moritz College of Law has been teaching and writing about the law of the presidency and separation of powers almost since the day he left the Reagan Justice Department’s Office of Legal Counsel, where, four years later, Alito would serve as a deputy assistant attorney general. With the recent revelations of post-9/11, warrantless domestic spying, there is a “sort of getting-it factor” now for people about the power of the presidency that they didn’t understand when questions arose in more politically arcane contexts, such as executive privilege, said Shane. Joining 500 opponents Which is why, Shane said, he took part in the press conference last week in which more than 500 law professors announced their opposition to Alito’s confirmation. “The most important issues surrounding this nomination include issues of executive authority,” said Shane. “He was at the Office of Legal Counsel when it was generating quite extraordinary opinions about the powers of the president. When he was there as political deputy, it basically took the position the president was entitled to unlimited policy control of the bureaucracy on every issue whatever the statute was that Congress had enacted. “For a pure example of the extremism of that theory, Congress directed the [Centers for Disease Control and Prevention] to put out an AIDS pamphlet and said it was not subject to policy review by the White House. The legal counsel said that would be unconstitutional; the president gets to edit every pamphlet. There is a direct line between that attitude and what we see coming out of this administration.” Shane also noted that Alito, in his 1985 job application for the office deputy position, said that he participated regularly in meetings of the Federalist Society for Law and Public Policy, a staunch advocate of the expansive, so-called “unitary executive” theory of presidential power, and that his judicial opinions reflect considerable deference to the government. Other critics expect some senators to question Alito about a 1984 memo he wrote as an assistant to the solicitor general in which he said that he did “not question” that U.S. attorneys general should have absolute immunity from suit for ordering illegal wiretaps. But he recommended against pushing that position in a Supreme Court appeal because there was a “high risk of failure,” since the appeal involved then-convicted former Attorney General John Mitchell. Douglas Kmiec of Pepperdine University School of Law, who worked in the Office of Legal Counsel when Alito was there, said: “I think the unqualified statement that he doesn’t doubt the need for that immunity for the attorney general is unfortunate in the context of the time when we’re trying to make a more careful balance between national security and civil liberties in the wake of terrorism. But anyone studying the memo can see he is not making a case for that kind of immunity, only saying the [Supreme] Court won’t accept that kind of unqualified immunity. “At best, you came away with: What does he really believe?” added Kmiec, who supports Alito’s confirmation. “I fully expect senators to press him on this topic. The memo itself, like so much of Judge Alito’s work, is craftsmanship: Here are principles of law, this is the trend, and that is as much as we can expect. It is not an exposition of belief but of strategy and lawyerly analysis.” On the legality of the Bush administration’s domestic spying, Kmiec predicted: “We will get Robertslike answers to those questions.” And that means little will be learned about Alito’s personal or legal views. Although she expects many questions on surveillance and executive power, Lee Epstein, a professor of law and political science at Washington University School of Law in St. Louis, said she wonders about “traction” on this issue. “In the executive power context, I wonder how many people are really concerned about the surveillance issue,” said Epstein, co-author of the recently published Advice and Consent: The Politics of Judicial Appointments. “Even if Alito says he supports broad executive power-which he won’t-will people be up in arms, screaming their heads off? I don’t see that issue resonating in the ways his opponents would like.” More likely to resonate will be what, if anything, Alito answers to questions about the most controversial documents to be released: his 1985 application to then-Attorney General Edwin Meese seeking a promotion within the department from his position in the Office of Solicitor General, and a strategy memo to the solicitor general on how to undercut the landmark Roe v. Wade ruling. In the 1985 job application, Alito wrote that he was “particularly proud” of his work on cases that the Reagan administration had argued in the Supreme Court and that claimed that “racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion. Helping to advance those legal positions, he wrote, gave him “great personal satisfaction,” and were positions that “I personally believe very strongly.” “The job application and abortion memo are probably the most controversial, not just because of what they said, but because they will test his credibility,” said North Carolina’s Gerhardt. “It will be interesting to see if he says anything that credibly distances himself from his prior statements. I don’t think he has to say anything more than what he said in the past to keep those on the right happy, but what can he do to move into the middle to keep Democrats and moderate Republicans happy? “He can try and say, well, that was 20 years ago and he was just a lawyer advocating positions, but it will be harder for him than it was for Roberts,” Gerhardt added. “And, lower court judges are bound to follow Supreme Court precedent in ways Supreme Court justices are not. The question becomes: Once he is free, to what extent do those beliefs inform his judgment? He was chosen because of those beliefs.” Alito’s belief that Roe was wrongly decided is not enough to derail his confirmation, said both Gerhardt and Epstein. “But many, including [Senator Arlen Specter, R-Pa.], have said the hearings could make a big difference for Alito,” said Gerhardt. “If he doesn’t answer well enough, he risks having a close vote.” Abortion may not be focus Abortion did not “play well” for the left during the Roberts hearings, said Sekulow of the American Center for Law & Justice, and will not be a dominant issue for Alito. “You can’t ignore it, but I don’t expect the hearings to focus on it.” Alito can also expect questions stemming from his comments in the 1985 job letter that his interest in constitutional law was triggered “in large part” by disagreement with Warren Court decisions on criminal procedure, reapportionment and the establishment clause. If there is a perception of unfairness or closed-mindedness on a range of issues after his answers, then there could be a problem, said Epstein. “If he comes across like a radical conservative who has made up his mind, then it is ideology and a whole group of people will say this guy is way too conservative,” she said. “But is he really going to come across like that? Something really stunning is going to have to happen. I think he will be a very conservative justice.”

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