As he opened the confirmation hearing today for Samuel Alito, Senate Judiciary Committee Chairman Arlen Specter said that a senator's vote on a Supreme Court justice is second in importance only to his vote on a declaration of war or -- in a sort of afterthought that plainly wasn't -- "an authorization for the use of force."
It was a reference to what would come a few moments later: Specter's concern about George W. Bush's program of warrantless spying on American citizens, and the Bush administration's insistence that the program was authorized by a 2001 congressional resolution that authorized the use of force against those who attacked the United States on 9/11.
In a report issued Friday, the nonpartisan Congressional Research Service said it would be difficult if not impossible to read congressional support for warrantless spying into the 2001 use-of-force resolution. Over the weekend, the not-at-all nonpartisan Sam Brownback said much the same thing. Asked whether he believed the use-of-force resolution authorized the warrantless spying program, the conservative senator from Kansas said: "It didn't, in my vote. I voted for that resolution. That was a week after 9/11. There was nothing you were going to do to stop us from going to war in Afghanistan, but there was no discussion in anything that I was around that that gave the president a broad surveillance authority with that resolution."
Specter said over the weekend that he will expect Attorney General Alberto Gonzales to appear before his committee next month to answer questions about the domestic spying program, and he made it clear this morning that he expects the program -- and the issues it raises about the scope of executive power -- to be a central focus of the Alito hearings, too. Bush's actions in approving the program, Specter said, have raised "very major considerations" about the "balance of power" between Congress and the executive branch. Alito's expansive views on executive power make his confirmation hearings a logical venue for raising those concerns.