Asked but not answered

Samuel Alito dodges questions on presidential power.

Published January 11, 2006 5:03PM (EST)

Can Samuel Alito answer a question?

Of course he can. He can answer Republican Sen. Sam Brownback when he asks if the Constitution says that a retiring justice has to be replaced by a justice with a similar ideology. (It doesn't.) He can answer Republican Sen. Tom Coburn when he asks why he wants to be a Supreme Court justice. (It's a chance to serve his country.) And he can answer when Republican Sen. Jeff Sessions asks whether judges should make up their minds about cases before they hear oral argument. (They shouldn't.)

But when a Democrat puts a question to Alito about a matter of substance, the nominee seems to find himself constitutionally incapable of giving a direct answer. Consider the following exchange in which Vermont Sen. Patrick Leahy tried to get Alito to offer his opinion on Hamdi v. Rumsfeld, a case in which Sandra Day O'Connor and Clarence Thomas offered starkly different views of a president's authority during wartime. Leahy asked Alito, "Which one is right -- Justice O'Connor or Justice Thomas?" Alito responded by explaining, at length, that O'Connor wrote the opinion for the majority in the case. Yes, Leahy said, but which opinion "do you personally agree with"? Alito launched into an explanation of the way in which he believes the war power is divided between the executive branch and Congress. Leahy complained that Alito still wasn't saying which opinion he favored. "I'm trying to explain my understanding of the division of authority in this area," Alito said.

Leahy moved on to other areas, but Alito continued to dodge his inquires. Leahy asks Alito if the president is free to violate acts of Congress. Alito says that the president is obliged to comply with the dictates of the Constitution. Leahy asks if the president can take it upon himself to decide that an act of Congress is unconstitutional. Alito says that, if a legal case ultimately arises out of such a decision, a court would get the final say.

There are words there, but there are no answers. A skilled questioner might have pursued Alito further, pinning him into an ever smaller box until he had to answer the question or make it obvious to everyone present that he was dodging. Patrick Leahy said, "Thank you."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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Patrick J. Leahy D-vt. Supreme Court