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10 questions for Samuel Alito
San Francisco Chronicle
January 8, 2006

APPEALS COURT Judge Samuel A. Alito Jr.'s past writings, speeches and judicial rulings offer abundant reasons for concern about his suitability to succeed Justice Sandra Day O'Connor on the U.S. Supreme Court.

This week, members of the Senate Judiciary Committee will get a chance to question Alito about some of the opinions that suggest his confirmation could tilt the high court in a new direction on issues of great significance to Americans -- on everything from our right to privacy to the ability of government to protect the environment and public safety.

President Bush's choice for the "O'Connor seat" is especially critical because of her role as the swing vote on issues such as abortion, affirmative action and campaign-finance reform.

Many of our questions for Alito are the same as we suggested in September for John G. Roberts before his confirmation hearings. As was the case with Roberts, we would neither want nor expect Alito to commit to how he could rule on specific cases that might come before the court. But questions about his philosophy on legal concepts -- including his analyses of past rulings and his views on the balance of powers in this democracy -- are fair game and should be answered with enough clarity to offer a sense of his judicial approach. In our view, Roberts passed that test.

One of the issues of focus should be Alito's forcefully articulated view that a president should have much broader powers. The matter of presidential authority has become timely in light of the Bush administration's attempt to "reclaim" presidential powers it believes were unduly weakened in the backlash of the Vietnam War and Watergate era. The administration's defiance of a law requiring judicial warrants on eavesdropping is merely the latest example.

Here are 10 areas of questioning for Alito:

1 Explain your views on the "unitary executive" theory, especially as expressed in a November 2000 speech in which you argued for a more expansive interpretation of presidential power than is generally accepted in this country?

2 Do you believe there is an implied right to privacy in the U.S. Constitution? (A right to privacy is the underpinning of the 1973 Roe vs. Wade ruling that guaranteed a woman's right to have an abortion). As a lawyer in the Reagan administration, you wrote that Roe vs. Wade should be overturned. Is that still your view?

3 Explain the reasoning behind your dissent in the U.S. vs. Rybar case, in which you argued that Congress overstepped its bounds in banning possession of machine guns. What is your view on the scope of the Commerce Clause? (The breadth of congressional authority to regulate interstate commerce is at the core of many environmental and civil-rights laws -- and a hot topic of legal scholarship. Some conservatives want to interpret it much more narrowly.)

4 In applying for a 1985 promotion, you wrote that you were "particularly proud" of your efforts for the government's attempt to outlaw "racial and ethnic quotas." Do you believe that government attempts to redress discrimination with measures such as affirmative action necessarily amount to discrimination?

5 Explain your position on voting rights. Do you believe in the guiding principle of "one person, one vote," which has been used through modern history to prohibit systems or practices that result in discrimination?

6 Please elaborate on your reasoning in discounting the role of race in the prosecution's rejection of all three prospective black jurors for the trial of an African American man accused of murder. In that 2001 case in your appellate court, you compared the relevance of the racial composition of the jury to whether voters picked presidential candidates based on whether they were left-handed or right-handed. Do you really believe such a comparison is valid?

7 Your 1986 memo to FBI Director William Webster argued that the Constitution grants only "fundamental rights to illegal aliens within the United States" -- a far narrower interpretation than the Supreme Court had established at the time. Explain how your interpretation might apply to areas such as education or the right to due process for undocumented immigrants.

8 You have ruled that the establishment clause does not necessarily prohibit religious expression in public schools. How does the government adhere to the First Amendment's call for protection of freedom of religion?

9 What is your view of "originalism," the concept that the Constitution should be interpreted according to its meaning at the time of ratification? Do you regard yourself as a "strict constructionist''?

10 You have described your interest in constitutional law as "motivated in large part" by your disagreement with the decisions of the Supreme Court led by Chief Justice Earl Warren in the 1950s and 1960s. Many of those rulings are now the settled law of the land. How much weight would you give to precedent in deciding whether to overturn a ruling you may believe was wrongly decided?