JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that recent national security issues involving controversial exercises of executive power should encourage senators to carefully analyze Judge Samuel Alito’s perspectives on executive authority, security and liberty in his upcoming confirmation hearings…

Recent actions that overemphasize executive power and national security at the expense of legislative and judicial power and of civil liberties could substantially affect the Supreme Court confirmation process for Third Circuit Judge Samuel Alito. One development is the mid-December revelation that President George W. Bush has invoked unilateral executive authority to conduct domestic surveillance since September 11, 2001. Another is the Supreme Court’s early November decision to review Hamdan v. Rumsfeld. In Hamdan, a D.C. Circuit panel, on which then-Judge John Roberts sat, overturned a district judge’s ruling that discontinued a military tribunal trial in essence because the president lacked power to create the tribunal. A third is the December 21 Fourth Circuit rebuke of the government for detaining Jose Padilla, a U.S. citizen, over three years by designating him an “enemy combatant” and then indicting Padilla apparently to evade High Court review, an issue which the Justices will consider in mid-January. Those developments mean that senators must carefully analyze Judge Alito’s perspectives on executive authority, security and liberty when exercising advice and consent.

First, the Department of Justice (DOJ) has vigorously litigated Hamdan and Padilla and additional cases that involve enemy combatants, which are, or will soon be, on appeal to the Supreme Court, while defense counsel in past, present and future “war on terror” prosecutions may well challenge domestic surveillance of their clients. In all the suits, DOJ argues for expansive views of executive power that overstate national security vis-à-vis civil liberty. The Justices, therefore, will face the government’s controversial assertion of executive authority and how to balance security and liberty when they decide Hamdan and should the Court accept Padilla and any other appeals.

Second, these considerations might elevate the stakes in Judge Alito’s confirmation process, partly because Chief Justice Roberts will recuse himself from the Hamdan case. For example, Justice Sandra Day O’Connor, who resigned on July 1, wrote the plurality opinion in Hamdi v. Rumsfeld, which mandated that the government accord persons whom it denominates enemy combatants due process to challenge the designations. Thus, Judge Alito’s perspectives on the Hamdan and Padilla cases may give him the swing vote.

Third, should Alito join with four other Justices and adopt the government views, this High Court resolution could sharply limit detainees’ ability to contest imprisonment and any charges filed against them before military tribunals. The Justices would do so mainly by restricting the procedural opportunities which detainees have to demonstrate that they were improperly labeled enemy combatants or incorrectly charged in tribunals. The Court may even leave the habeas petitioners incarcerated until the ongoing conflict terminates.

When Senate members assess Judge Alito’s qualifications, they should remember certain ideas. Some observers contend that his nomination accentuates their concerns about how the Justices will calibrate the delicate balances, which involve separated powers among the three federal branches as well as between national security and civil liberty. They suggest that Alito, perhaps more than the new Chief Justice, both of whom worked for years in the executive branch, will be overly deferential to executive prerogatives and national security. For instance, as a Justice Department lawyer, the nominee appeared rather solicitous of the Executive by contending that the Attorney General should enjoy immunity from suit for illegally wiretapping citizens. Alito correspondingly sought to increase presidential authority when he recommended that the chief executive issue “signing statements” which explain legislation’s meaning at the time the president signs it. A striking, recent example is the December 30 “President’s Statement on Signing of H.R. 2863.” This document instructs that the “executive branch shall construe section 1005 (governing detainee treatment) to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future [habeas corpus] action,” a presidential interpretation which directly contravenes Congress’s intent.

As the confirmation hearing for Judge Samuel Alito begins, senators must keep in mind the president’s unilateral assertion of power to order domestic wiretaps, as well as the significant Hamdan and Padilla appeals and other important lower court decisions, which relate to executive authority, national security and civil liberty. These cases will come before the Supreme Court this year and in future Terms, and the appeals should lead Senate members to scrutinize the jurist’s perspectives on constitutional precedent, executive power, and the tension between security and liberty when they evaluate the nominee.

Carl Tobias is the Williams Professor of Law at the University of Richmond
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