ALTHOUGH SAMUEL A. ALITO JR.'s position on abortion rights garnered much of the attention in the aftermath of his nomination to the Supreme Court last fall, the top priority of senators at his confirmation hearing this week should be to ascertain whether the judge sufficiently appreciates the proper constitutional balance of power among the three branches of government.
It is a timely issue, as President Bush insists on expanding the executive branch's power to conduct the war on terrorism. The administration has asserted the right to detain "enemy combatants" with no judicial review, for example, and to deploy, without any court warrant, wiretaps within the United States. As it has claimed these powers, the White House has also systematically sought to undermine the judicial branch's traditional role of serving as a check on the government's power to infringe on individual rights.
As Justice Sandra Day O'Connor eloquently stated in a Supreme Court decision reining in an instance of executive overreach: "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
There is reason to press Alito, who would replace O'Connor on the court, on whether he agrees with this statement. And it's not simply because he is a conservative judge, which this president is legitimately entitled to nominate, or that he served for many years as a lawyer in the executive branch, as many of Washington's best and brightest lawyers have done. It's because Alito in the past has asserted a radically expansive theory of presidential power.