Sen. Leahy spent the majority of his allotted time questioning Judge Alito on his views of executive power. Using current events surrounding negotiations between Sen. John McCain and the President regarding torture as a lead-in, Leahy stressed concerns about holding the President accountable for unlawful acts during wartime.
Alito explained when conflict arises between a President exercising executive power contrary to Congressional will it makes a “twilight zone” that should be analyzed under the framework Justice Jackson established.
Regarding wiretapping policies and the usage of FISA courts, Leahy said, “I’m not asking these as hypothetical questions” and followed by asking if Alito believed it was permissible for the President to circumvent FISA courts. Alito responded that the President is required to comply with the fourth amendment and there may be statutory issues involved that would have to be resolved. “In order to resolve them I would have to know what arguments were being made,” Alito said.
Leahy also brought up the much publicized “strip search case” of a 10-year old girl.
Alito said the primary issue in that case was whether the warrant authorized the search of people on the premise. “That was the point of disagreement” Alito said. “I was not pleased a 10 year old girl was searched. There should not be a rule that a minor should not be searched.”
Finally, Leahy ended by asking about Alito’s affiliation with the Concerned Alumni of Princeton (CAP) which liberals accuse of being racist. After establishing a bond between the two of them, both being the sons of immigrants who overcame a heritage wrought by discrimination. “Why in heavens name, Judge with your background with what your father faced, why in heavens name were you proud of being part of CAP?”
Alito responded (summarized): “ I have no recollection, but since I put it down I must have been a member. If I have been to meetings I would have remembered. I think of what might have caused me to sign up for membership was the military. The issue that rankled me at Princeton was ROTC. I had friend who were against the war in Vietman, but I didn’t think it was right to oppose that for tha treason. And it kept coming up. The attitude was that Princeton was too good for the military and that Princeton would be sullied having the military around…Someone from my background would not have been comfortable in an environment [that discriminated minorities].”