01:00 AM EST on Monday, January 9, 2006

BY JOHN E. MULLIGAN
Journal Washington Bureau

WASHINGTON -- On the eve of Senate confirmation hearings on federal appellate Judge Samuel A. Alito Jr.'s nomination to the Supreme Court, Sen. Lincoln D. Chafee has voiced new concerns that could drive him to vote against seating President Bush's selection.

Already concerned that a Justice Alito would move to limit access to abortion and chip away at the constitutional wall between church and state, Republican Chafee now wants to scrutinize the New Jersey judge's views on what he calls Mr. Bush's "unauthorized wiretapping" program.

With the confirmation hearings set to begin today in the Senate Judiciary Committee, Chafee has not decided how he will vote on Alito's nomination, he said in an interview last week. Democratic Sen. Jack Reed, also undecided, has said that right-wing forces in the GOP may have prompted President Bush to nominate Alito.

If the Senate divides narrowly on Alito's nomination, Chafee is among the potential swing votes. The liberal Republican's dilemma says something about Alito's chances for winning the seat, about the prospect that a Justice Alito would nudge the high court to the right, and about Chafee's own campaign to be reelected to the Senate in November.

Chafee has already made statements that tend to support the liberal case against Alito -- and that Democrats would surely use against him if he voted to confirm Alito's nomination.

But Chafee has also called Alito, the Ivy League-educated son of an Italian immigrant, "highly qualified" to sit on the Supreme Court. Chafee has supported most of Mr. Bush's judicial nominations, moreover, including that of conservative Chief Justice John G. Roberts Jr. last fall.

Chafee figures, too, in one of the legislative sub-plots of the Alito story. He is one of the bipartisan "Gang of 14" senators who last year staved off a potentially historic battle over the Senate's traditional right to filibuster. The delaying tactic enables a small minority to kill even popular legislation or nominations in the Senate by blocking an up-or-down majority vote.

Over the years, judicial appointments haven't generally been filibustered but Democrats have taken to using the tactic against Bush nominees they deem particularly objectionable. In response, Republican leaders last year threatened to permanently weaken filibuster rights -- which could have triggered a parliamentary confrontation. The Gang of 14 forged a compromise that prevented the crisis. As long as that group hangs together, it can frustrate any effort to filibuster Alioto's nomination.

Early in November, Chafee warned of "enormous" consequences from a Democratic bid to kill Alito's nomination by stalling it.

During last week's interview, Chafee said Mr. Bush's recently disclosed program of surveillance for possible terrorist activities in this country is unauthorized because it falls outside what is permitted under the USA Patriot Act, the law passed to increase the government's domestic investigative powers after the Sept. 11, 2001, attacks.

Chafee said he therefore wants to know Alito's views on the Fourth Amendment to the Constitution, which restricts government searches and seizures. The Fourth Amendment is "very specific" in securing the right of citizens to be free from unreasonable searches, Chafee said. But having raised the issue, Chafee would not say flatly whether he views the newly disclosed domestic spying program as constitutional.

Chafee said the president's domestic eavesdropping program bears on Alito's nomination. He cited a 1984 memo in which Alito said that when the attorney general acts to protect national security -- even with illegal wiretapping -- he should be immune from lawsuits. Alito was at the time a Justice Department lawyer in the Reagan administration.

Chafee said he disagrees but wants to hear what Alito says on this issue during the hearings.

Chafee also said he wants to hear how Alito answers questions about whether he kept his promise -- made during his judicial confirmation hearing in 1990 -- to recuse himself from cases involving firms in which he held financial accounts.

Chafee added these issues to three other areas that he had flagged earlier as potentially obstacles to his support for Alito:

Whether Alito will support abortion rights. Chafee noted with concern that Alito has ruled in favor of certain restrictions on abortion, such as a requirement that women, with certain exceptions, tell their husbands when they intend to get abortions.

Chafee defied abortion-rights supporters last year when he voted to seat Roberts. But he defended his vote on grounds that Roberts was replacing another conservative, the late Chief Justice William H. Rehnquist. Roberts therefore would not shift the Supreme Court to the right, Chafee argued.

The Alito nomination is different, according to Chafee, because he would replace Justice Sandra Day O'Connor, who has been a swing vote in favor of abortion rights.

Whether Alito will permit undue entanglement of government and religion. Here Chafee is uncertain. He endorsed one Alito decision in favor of a municipal holiday scene that mixed Christmas and Hanukkah images with non-religious figures such as Frosty the Snowman. Chafee criticized Alito for voting to dismiss another creche case.

Alito's possible willingness to limit federal power to enact national regulations. Here Chafee specifically fears that Alito would vote to trim environmental protection law.

Chafee is under pressure on this account by longtime allies in the environmental lobby. Last week, for example, a Sierra Club lawyer declared that Alito's nomination would be disastrous for the environmental movement.

A KEY Democratic argument against Chafee's reelection is that, as a Republican, he will vote to elect a Republican Senate leadership team and, occasionally, to support Bush nominees who are more conservative than Chafee is.

Chafee's vote for Roberts is on the Democratic bill of particulars.

Chafee's Democratic challengers declared shortly after Alito's nomination that his position on abortion alone disqualifies him for the Supreme Court. Former Rhode Island Attorney General Sheldon Whitehouse said Alito is "radically conservative." Secretary of State Matthew Brown called him a "right-wing ideologue."

But Chafee's Republican constituents in Rhode Island tend to support Alito, the senator acknowledged. That's a factor in Chafee's reelection campaign because he must face a Republican primary challenge in September.

Cranston Mayor Stephen P. Laffey has not taken a stand on Alito. He did back Roberts and he criticized one of Chafee's key support groups, an abortion-rights organization that last summer ran an ad accusing Roberts of supporting violent antiabortion groups. The ad, which NARAL Pro-Choice America pulled off the air, was an "extremist" tactic, Laffey said.

jmulligan@belo-dc.com / (202) 661-8423