Surprise Witness

The biggest surprise of Samuel Alito's confirmation hearing thus far may be that it is actually yielding surprises. Alito's candor has complicated the caricature of him held by many on the left and right. Below, three issues where Alito's testimony offered some unexpected twists:Executive power. Most people assumed Alito would avoid the legal status of President Bush's post- September 11 domestic spying program. But, instead of refusing to answer questions about the imbroglio, Alito made clear that his view of executive authority is nuanced--and does not necessarily support the Bush administration's position. Textualism versus originalism. Asked about his approach to interpreting statutes and the Constitution, he said, "[W]here I start and often where I end is with the text." This was a surprise for two reasons. First, Alito's Third Circuit opinions do not seem to be the product of a committed textualist. Second, Alito has been associated with a movement to encourage presidents to issue statements when signing bills into law in order to facilitate judicial interpretation, something a committed textualist would avoid. When confronted with this apparent contradiction, he pleaded his dedication to textualism as a defense. Foreign law. On the hot-button issue of whether Supreme Court justices should draw upon foreign law, Alito at first seemed to toe the conservative line, saying it would be inappropriate to consider foreign laws and foreign constitutions while interpreting our own. But then he uttered a surprising remark: that it might be appropriate to look at foreign legal sources to interpret treaties the United States has signed. That's more foreign law than most Republicans are probably comfortable with. On January 25, the Palestinian Authority is scheduled to hold parliamentary elections in which the terrorist organization Hamas is expected to make a strong showing. Nonetheless, the Bush administration, which believes in the transformative nature of elections, is eager for them to proceed. The easiest way to ensure this would be for the White House to pressure Ariel Sharon's disciple, Acting Prime Minister Ehud Olmert, to reverse Sharon's earlier decision barring Palestinian voting in East Jerusalem. Indeed, that is precisely what Palestinian leader Mahmoud Abbas wants Washington to do. But such a move by the United States would have put Olmert in a no-win situation: Either he bows to Washington, in the process countermanding Sharon's policy and giving his competitors a powerful campaign issue, or he says no to Washington and faces voters as the man who flubbed his first effort at handling Israel's most important alliance. Thankfully, Washington did the right thing: nothing. By stepping out of this tussle, the Bush team wisely let Olmert come up with his own subtle solution. According to press reports, he plans to ask his cabinet to allow the vote but prohibit any Hamas candidates from appearing on the ballot in Jerusalem. This, in turn, will force Abbas to do something he hates to do--make a decision, in this case on whether to accept the Israeli conditions for elections in Jerusalem, hold them everywhere but the Holy City, or postpone them altogether. * Ethan J. Leib is a law professor at the University of California's Hastings College of the Law. * Robert Satloff is executive director of the Washington Institute for Near East Policy. For complete articles, go to tnr.com

By Ethan J. Leib; Robert Satloff