Alito’s views on executive branch power remain a sticking point

Senate Judiciary ranking member Patrick Leahy, D-Vt., announced Thursday he will vote against Samuel Alito's nomination to the Supreme Court because he believes the nominee would not be a check on presidential power.

Leahy, who voted to confirm Chief Justice Roberts, is the latest in a growing number of Democrats who have either come out against Alito or indicated they might do so.

Freshman Sen. Ken Salazar, D-Colo., also said he will vote against Alito's nomination. Sen. Edward Kennedy, D-Mass., who signaled his opposition to Alito Wednesday, also struck the checks and balances theme in a speech this afternoon. Other Democrats who have come out against Alito include Sens. Barbara Mikulski of Maryland and Tom Harkin of Iowa.

Leahy and Kennedy spoke as Alito continued to make rounds of senators still in town, including Sen. Thomas Carper, D-Del., who plans to announce his decision next week, and Sen. John Sununu, R-N.H. Leahy drew a rousing round of applause at Georgetown University Law School when he told an audience of students and others he will not support Alito's nomination.

"At a time when the president is seizing unprecedented power, the Supreme Court needs to act as a check and provide balance," Leahy said. "Based on the hearing and his record, I have no confidence that Judge Alito would provide that check and balance."

Leahy's decision was not a surprise because he had aggressively questioned the nominee, concentrating on Alito's attitude toward presidential power. Leahy cited Alito's support for the "unitary executive theory" in a 2000 speech, his failure to distance himself from the Federalist Society, which touts that theory, and "his rulings in favor of government intrusions."

In remarks prepared for delivery to the Center for American Progress, Kennedy declared Alito's record is "clear and ominous" and began with the judge's views on executive power.

"We cannot count on him to blow the whistle when the president is out of bounds," Kennedy said. "During the hearings, Alito attempted to downplay his extreme view of executive power, but he did not disavow it."

Kennedy also criticized Alito's record on civil rights and abortion rights. He argued that Alito had most often ruled against black plaintiffs in employment discrimination cases and "failed to resolve very serious concerns that he's itching to overturn Roe v. Wade." Harkin issued a statement saying he was "gravely concerned that Judge Alito does not believe the Congress has the authority to protect the fundamental rights of all Americans," including disabled individuals.