http://www.nytimes.com/2006/01/10/politics/politicsspecial1/10legal.html?th=&emc=th&pagewanted=printJanuary 10, 2006
Legal Context
Focus of Hearings Quickly Turns to Limits of Presidential Power
By ADAM LIPTAK
WASHINGTON, Jan. 9 - The opinion is more than 50 years old, and it is not even binding precedent. But just minutes into the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr., it took center stage and seemed to lay the groundwork for the questions he will face concerning his views on the limits of presidential power.
The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning.
Senator Arlen Specter, the Republican chairman of the Judiciary Committee, discussed only three decisions by name in his opening statement: Justice Jackson's concurrence in the 1952 case, Youngstown Sheet and Tube Company v. Sawyer, and two abortion cases, Roe v. Wade and Planned Parenthood v. Casey.
Quoting from the Jackson concurrence and referring to the surveillance program, Mr. Specter said, "What is at stake is the equilibrium established by our constitutional system."
Senator Patrick J. Leahy, the ranking Democrat on the committee, made a similar assertion in noting that Judge Alito would replace Justice Sandra Day O'Connor if he was confirmed. "She upheld," Mr. Leahy said, "the fundamental principle of judicial review over the exercise of government power."
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