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The first test of the controversy's political resonance could come as early as next week, with the opening of Alito's confirmation hearings before the Senate Judiciary Committee, whose fiercely independent chairman, Republican Arlen Specter, has called the Administration's rationale for the no-warrant surveillance "a stretch." Opponents of Alito's nomination, who had planned to put the abortion issue on center stage, are quickly retooling their strategy. Says Patrick Leahy, the top Democrat on the Judiciary Committee: "I will be asking Judge Alito a lot of questions about checks and balances and what he can say that would convince us he would be willing to act as a check and a balance."
Alito's record could give his critics plenty of ammunition. The Third Circuit judge has long been an advocate of the unitary-executive concept, a constitutional interpretation that is a favorite of Bush's and Vice President Dick Cheney's, which argues that the President should have nearly total control of Executive Branch agencies and resist any incursion on that power by Congress. And in a 1984 memo recently released by the National Archives, Alito--at the time a lawyer with the Reagan Administration Justice Department--argued that government officials who order illegal domestic wiretaps can be immune from lawsuits. The case in question arose in 1970, when then Attorney General John Mitchell allowed the FBI to wiretap Vietnam War protesters suspected of plotting to kidnap National Security Adviser Henry Kissinger.
Administration officials concede that the controversy will inject a volatile new element into the confirmation debate but say Alito will resist getting drawn in. "It will form the basis for questions and possible senatorial grandstanding, and the hearing may be more hostile than it was with [recently confirmed Chief Justice John] Roberts," an official involved in the nomination tells TIME. "But like any nominee to the court, you're not going to see him predict any cases or make any commitments to the committee." As for that two-decade-old memo, it was a domestic matter that has "no nexus, no connection, no link" to the current debate, says Steve Schmidt, a White House aide helping shepherd Alito through the confirmation process.
The Alito nomination is not the only issue on which the Administration will have to confront the controversy. It will add to Bush's already difficult struggle to renew the most controversial provisions of the USA Patriot Act, which was passed after 9/11 and gave law enforcement broad new powers that have since unsettled some on both the left and the right. Congress last month disappointed the White House by giving the provisions only a five-week extension, setting a new expiration date of Feb. 3. And some kind of congressional investigation into the NSA spying program seems certain. Specter, for one, has promised hearings early in the year--a move, sources tell TIME, that the White House is hoping to head off by convincing the Senator to defer to the Intelligence Committee, whose hearings would be behind closed doors and classified. "They're going to lean on Specter very hard not to hold hearings," says a Republican official. Bush has warned that any public hearings on programs would simply tip off terrorists and invite them to adjust their tactics, and he says, "This is a war."