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Slate's Jurisprudence: Judge Alito's Paper Trail

ALEX CHADWICK, Host:

Dahlia, what are the issues that you think are going to come up and make life difficult for Judge Alito at these hearings?

DAHLIA LITHWICK: Well, Alex, no surprise, abortion is going to be a big one. A lot of John Roberts' hearings were about the abortion issue, but Alito's actually expressed real reservations about Roe, and he's going to have to explain himself. I think, though, that that might even be eclipsed by questions about his views about the war on terror, about executive power in wartime. In light of the recent revelations about the president and unwarranted wiretapping and listening in on American citizens, I think that it has become a real concern on the part of some of the senators, including some of the moderate Republicans on the Senate who would have been inclined to favor Alito, about whether he is going to essentially give the president the, quote, "blank check" that Sandra Day O'Connor said the president does not have in wartime.

CHADWICK: So you're saying that the story that broke less than a month ago is really changing and affecting the tenor of these hearings.

LITHWICK: Yeah. I think it's very much starting to inform the way we think about the debate. And I think that questions about the scope of presidential power don't necessarily track on the sort of left-right spectrum that we're so familiar with. In other words, I think there's a lot of people on both sides of the political aisle who are very, very concerned about the notion of giving the president absolutely unfettered power during wartime, particularly a war that may go on forever.

CHADWICK: Well, is this hearing then about Judge Alito, or is it about Mr. Bush and what powers that he has? And how will questions to Mr. Alito go in that direction?

LITHWICK: Well, I think that there are going to be a lot of questions referencing, for instance, a 1984 memo that he wrote to the then-solicitor general about whether the then-attorney general had the power to authorize warrantless wiretapping. That was a very different case because the question there was whether you could get money damages if the attorney general had wiretapped you. But, still, Alito wrote a memo saying in that case that the AG was immune by suit. And that kind of thing--his general tendency I think to support police power, to support the state, to overwhelmingly support the sort of side of law and order vs. the side of the beleaguered defendant is very much going to be at issue here.

CHADWICK: There are these documents that keep emerging in dribs and drabs a lot from the Reagan Library. Is there something else you see in these documents that's going to be troubling?

LITHWICK: I think the other big document that everyone's going to be looking at is his very notorious now job application in 1985, which he wrote in his own words, very much talking from his heart, about his political values. And in that, he famously said, quote, "The Constitution does not protect a right to abortion." He said that he felt very strongly about voting rights, cases that he thought were decided wrongly and Warren court excesses. And unlike John Roberts, it's going to be very hard for him to say, `I can back away from those opinions. I was just sort of echoing the opinions of others.' Those were very much his opinions, and sort of wiggling out from those opinions is going to prove very difficult because he was very passionate about them 20 years ago.

CHADWICK: Let me just ask you if I may to look past the hearings. If Judge Alito is confirmed to the Supreme Court, as all predictions that I have read in the last three weeks say he probably will be, do you have a sense of what will happen to the balance of the court when he replaces Sandra Day O'Connor?

LITHWICK: I think, however, it's clear that he is a judicial conservative, whatever that means. And I think that because he is replacing someone who was absolutely the definitive vote in so many five-four cases over the past years, we are, I think, going to see a slow, inexorable shift to the right on the part of the court, particularly in church-state cases, particularly in cases about I think executive power, in cases about abortion and in cases about the death penalty. I think we're going to see quite a marked shift over the next years.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the court for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

LITHWICK: My pleasure, Alex.

CHADWICK: More coming up on DAY TO DAY from NPR News. Transcript provided by NPR, Copyright NPR.

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