Battlefield justice

President Bush dashed into 2006 with a schedule that took him from Texas to the Capitol to Illinois in less than a week. In San Antonio on New Year's Day, he challenged critics of his domestic terror-war policies. In Washington, D.C., he led mid-week meetings at the Pentagon and White House to pitch his game plan for the war in Iraq. And in Chicago on Jan. 6, he was scheduled to tout good economic news to the Chicago Board of Trade.

While the president stumped for his views on the war and American business, aides worked behind the scenes prepping the man Mr. Bush hopes will shape constitutional law on both: 3rd Circuit Appeals Court Judge Samuel Alito. Confirmation hearings for the razor-sharp, regular-Joe jurist from Jersey are set to open on Jan. 9. Though activist groups have exchanged fire mainly over the flashpoint issue of abortion, Mr. Bush tapped Mr. Alito for other reasons as well.

"He has a deep understanding of the proper role of judges in our society," the president said on Oct. 31, 2005, when announcing Mr. Alito's nomination. "He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."

Mr. Alito's widely acknowledged conservatism, in particular his strict views on the judiciary's limited role, may work to reverse what many see as the high court's increasing encroachment on private enterprise and other branches of government.

Based on his record, Mr. Alito "is going to be a reliable conservative vote in favor of business and against those who would make use of the power of the court . . . to regulate businesses unnecessarily," said Tom Fitton, president of Judicial Watch, a conservative legal watchdog group.

Mr. Alito has often ruled in favor of employers in discrimination cases, doing so 18 of the 22 times he has written on the issue. While he has written for the majority in more than half those cases, anti-Alito groups still say he is hostile to employees claiming race, gender, and religion bias.

The liberal Alliance for Justice, for example, has made much of an 11-1 3rd Circuit ruling in Sheridan v. DuPont, in which Mr. Alito was the "1." Plaintiff Barbara Sheridan claimed her employer passed her over for promotion because she is a woman, but provided little direct evidence of discrimination. Historically, direct evidence in such cases has been difficult to muster, leading to case law that says a plaintiff need only prove he or she is a member of a protected class, was qualified for the position, was fired (or passed over), and that the position was ultimately filled by a person not in the protected class.

While the majority in Sheridan hewed to that precedent, Mr. Alito dissented, writing as he has in other cases that Ms. Sheridan ought to provide actual evidence to bolster her case.

During confirmation hearings, Mr. Alito is sure to face questions on race and gender bias. With the Bush administration's post-9/11 domestic wiretapping program making headlines, he may face still tougher ones on privacy. Last month, news broke that the administration had let the National Security Agency monitor the phone calls of some Americans. The White House has insisted the wiretaps are limited to terror suspects and to calls in which one party in the conversation is located outside the United States.

"If somebody from al-Qaeda is calling you, we'd like to know why," Mr. Bush said, defending the action in San Antonio on Jan. 1.

Civil libertarians view this eavesdropping as a gross infringement on privacy, but Mr. Alito may not agree. On Nov. 9, he met with Wisconsin Democrat Russ Feingold, the only senator to vote against the Patriot Act. (Congress failed to reauthorize the act before the Christmas recess but agreed to a month-long extension that ends on Feb. 3.) Mr. Feingold asked the judge what he thought of so-called "sneak and peak" warrants in terror cases-warrants that allow the FBI, with a judge's approval, to sneak into a suspect's home, office, or car without notifying the suspect. Mr. Feingold told reporters Mr. Alito said "the framers might have been shocked at the idea of such searches occurring," but that he also said, "At the same time, you have to remember that times have changed."

While working in the Reagan Justice Department, Mr. Alito argued that attorneys general authorizing domestic wiretaps in the interest of national security should be immune from prosecution. That argument is drawing keen scrutiny from Judiciary Committee Democrats.

Key in the dispute over domestic spying-and over the detention of terror suspects-is whether the actions of U.S. officers fall under President Bush's war powers or under the aegis of law enforcement. Also crucial is whether detainees are more correctly classified as criminal suspects, enemy combatants, or prisoners of war.

In papers filed with the Supreme Court Jan. 3, lawyers for suspected "dirty bomber" Jose Padilla raised both the domestic wiretap and detention issues. In 2002 Mr. Padilla, a U.S. citizen, was arrested on suspicion that he was part of a plot to blow up apartment buildings in New York, Washington, or Florida. Labeling him an "enemy combatant," authorities held him for three years before charging him last month with being part of a North American terror support cell.

In 2004, the Supreme Court heard Hamdi v. Rumsfeld, a case involving Yasir Hamdi, an American citizen whom U.S. forces captured in an Afghanistan combat zone with a gun in his hand. Mr. Hamdi's father had challenged the Pentagon's classification and detention of his son as an enemy combatant. A slim plurality of the court ruled in favor of the Defense Department, concluding that under the Authorization of Use of Military Force that Congress passed in the wake of the Sept. 11 terror attacks, President Bush did have the authority to detain a U.S. citizen. Still, Justice Sandra Day O'Connor wrote that Mr. Hamdi, as a U.S. citizen, should be given a meaningful opportunity to contest his detention before a neutral arbitrator. Justices David Souter and Ruth Bader Ginsburg dissented, concluding that Mr. Hamdi's detention was unauthorized.

"The Bush administration is concerned, and rightly so, that the judicial branch is not as deferential as it ought to be to the president in time of war," said Judicial Watch's Tom Fitton.

An Alito confirmation could change that. As a judge, he has shown great reluctance to second-guess prosecutors and law enforcement agencies, requiring plaintiffs to prove that officials made significant mistakes that may have prevented the just resolution of a case. Among 60 criminal appeals yielding published rulings in which Mr. Alito wrote, he sided with the defendant in only 12 cases. With cases like Mr. Padilla's headed for the high court-and an administration at least as committed to fighting terrorism as it is to fighting abortion-judiciary committee liberals will likely question Mr. Alito about that as well.