Leahy Letter To Judge
Alito On Checks And Balances On Presidential Power
…Plans To Ask
Nominee About Bush Administration’s Covert Spying
Program;
War Powers and Policies on Torture At Hearings Next
Month
WASHINGTON (Monday,
Dec. 19) – Senator Patrick Leahy, the ranking member
of the Judiciary Committee, on Monday sent the
following letter to Supreme Court nominee Samuel
Alito. In the letter, Leahy, D-Vt., provides Judge
Alito notice that he plans to inquire about issues
relating to Alito’s views on presidential power,
including the recent revelation that the Bush
Administration had been conducting a covert spying
program of Americans, and others, within the United
States. Among other issues, Leahy also wrote that
he plans to ask Judge Alito about the Bush
Administration’s policies on torture and
interrogation of detainees. The text of the letter
follows.
PDF
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December 19, 2005
The Honorable Samuel A. Alito
United States Circuit Judge for the Third Circuit
357 U.S. Post Office and Courthouse
Federal Square and Walnut Street
Newark, NJ 07101
Dear Judge Alito:
I was glad that we had a chance
to meet last month, if only briefly, and look
forward to hearing from you at the upcoming
hearings. I expect to ask you a number of questions
about the role of the courts and judges in our
democratic government. I write to you now, in
advance of the hearing, so that you will have an
opportunity to reflect on these issues and provide
fully responsive answers at the hearings.
Last week, we celebrated the
214th anniversary of the adoption of the
Bill of Rights to the Constitution. The Framers
also embedded protections into the structure of our
democracy. The checks and balances among our three
branches of government provide fundamental
safeguards for the rights of all Americans by
ensuring that when one branch overreaches, it can be
constrained by the others. Americans rely on this
governmental structure to maintain the critical
stability and balance necessary to preserve our
freedoms and liberty.
At your nomination hearing next
month I plan to ask you about your views on the
President’s power as Commander in Chief under our
Constitution and the scope of congressional power in
the time of war. There have been times throughout
our history when the separation of powers has been
tested by Presidents claiming unfettered power.
Recent revelations that the President authorized
domestic eavesdropping without following the statute
that requires approval of the Foreign Intelligence
Surveillance Court is but one of several areas where
the Court’s role as a check on overreaching by the
Executive may soon prove crucial. The Supreme
Court’s role in resolving disputes between the two
political branches of federal government involving
the withdrawal of troops, and the methods of
interrogation, are two other examples of issues that
I will want to discuss with you.
Just as with any Federal judge,
I view a Supreme Court Justice’s willingness to
serve as a check on executive power as among the
most important issues to consider in a nomination
process. It is ironic that after years of issuing
decisions that were strongly supportive of executive
claims of authority, especially in cases involving
so-called “enemy combatants,” the Fourth Circuit is
now questioning the Bush Administration’s switch in
its position on whether Jose Padilla can be tried as
a civilian in federal criminal court. These issues
were also raised in the case of Hamdi v. Rumsfeld,
in which Justice O’Connor wrote that our
Constitution does not afford the President a blank
check, even in war time. I raised these concerns
with Chief Justice Roberts when I asked him about
congressional power to end a war and the Bybee memo
and its theory of a Commander in Chief override of
legal restraints on torture.
Because your career includes an
extensive period in the Meese Justice Department and
because your advancement in 1990 and proposed
elevation this year owe much to selection and
nomination of Presidents, I will ask what assurance
you can give to the American people that you will
not improperly defer to the executive, but will act
as an effective check on abuses of presidential
power.
I also will want to explore
your view of the role of the federal courts in
protecting the rights of Americans. I have often
noted that the words engraved in the Vermont marble
on the facade of the Supreme Court are not just
“Under Law” but “Equal Justice under Law.” Judges
and justices do not act mechanically but must
exercise their judgment and discretion in the
interests of justice, within the bounds of the law
and the Constitution, as they did in such crucial
cases as Brown v. Board of Education and
Baker v. Carr.
Finally, I will ask about your
view of congressional authority. Along with many
others, I have grown increasingly concerned over the
last few years at the Court’s overruling of
congressional actions to protect the environment,
ensure equal justice and provide health care and
other basic benefits. Your speeches to the
Federalist Society in these regards raise particular
concerns, and I am sure that you will be asked about
your endorsement of such judicial activism.
Following as it does the
President’s withdrawal of the nomination of Harriet
Miers because of complaints by supporters of the
President's, and coming as it does with the
wholehearted endorsement of those same supporters,
your nomination directly raises the concern whether
this is all part of an effort to move the Supreme
Court and the law radically to the right. I want
all Americans to know that the Supreme Court will
protect their rights and will respect the authority
of Congress to act in their interests. I want a
Supreme Court that acts in its finest traditions as
a source of justice. The Supreme Court must be an
institution where the Bill of Rights and human
dignity are honored. If confirmed as an Associate
Justice on the United States Supreme Court, you
would not be just another appointee of a Republican
President, but must serve as a check on abuses of
presidential power.
I wish you and your family a
Merry Christmas and a healthy and happy New Year. I
look forward to seeing you again on January 9.
Sincerely,
PATRICK LEAHY
Ranking Democratic Member
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