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 Judging Alito
 Often more is in play during Supreme Court nomination hearings than the nominee's qualifications. SPECIAL REPORTYOUR E-MAIL ALERTSWashington (CNN) -- Years ago, senators didn't even question presidential nominees to the Supreme Court. Now they do, of course, and Judge Samuel Alito may wish this week, as the questions flood over him, that he'd lived in that quieter time. Back then, television commercials weren't part of the process either. They are now; pro- and anti-Alito groups are running ads. It's supposed to be a sort of second-bounce effort. A pro-Alito group runs its ads, for instance, in red states like South Dakota that have Democratic senators, like Tom Johnson. The idea is to scare Johnson into voting for Alito, because otherwise, angry South Dakotans will vote him out of office. Will this work? Probably not, but the midterm election is 10 months away and these groups need something to do. What probably will matter are Alito's answers to the questions he'll get. On abortion, for instance. He's on the record as opposing it; the question is whether he'd vote to overturn Roe v. Wade or regard it as a precedent that should stand. Justices in Roe v. Wade harked back to a 1965 case, Griswold v. Connecticut, which found a constitutional right to privacy in the "emanations" of various parts of the Bill of Rights. Judge Robert Bork, whose nomination to the court was defeated in 1987, was a critic of Griswold and skeptical of any right to privacy. The word "borked" has come to mean something like personal attacks on a nominee. But, in fact, Bork lost mainly on issues -- abortion was one, but he also initially found parts of the 1964 Civil Rights Act unconstitutional, feeling that a merchant had the right to refuse to serve a black, or anybody else. Bork eventually changed his mind about that, but a lot of black voters wrote a lot of letters to a lot of senators complaining about his initial opinion. Abortion may be especially hard for Alito, because as an appeals court judge he favored a Pennsylvania law requiring married women to notify their husbands before having an abortion. The Supreme Court disagreed, 5-4. The court has, over the years, upheld the basic right to an abortion while favoring some restrictions on it, which is about where polls show Americans stand on the issue. Mr. Alito wrote, back in 1985, that he believed "the Constitution does not protect a right to an abortion." One issue that will loom larger in these hearings than in Chief Justice John Roberts' last year is the balance between presidential authority in wartime and the liberties the Constitution gives American citizens. This administration seems to believe that the president's authority, in wartime, is absolute. It has asserted the right to jail American citizens, if it labels them "enemy combatants" indefinitely, without charging them with a crime or giving them access to a lawyer. It has approved the use of torture. It has sent prisoners to other countries that practice torture. It has electronically eavesdropped on Americans without a warrant. A 2002 Justice Department memo says in part, "Congress can no more interfere with the president's interrogations of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." Well, civil liberties often take a beating in wartime. President Lincoln suspended habeas corpus during the Civil War. President Roosevelt locked up Americans of Japanese ancestry during World War II. On the other hand, when Harry Truman said he had constitutional authority to seize private steel mills during the Korean War, the Supreme Court said no. Benjamin Franklin famously said, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." President Bush clearly believes he has the authority to take away some liberties -- warrantless wiretaps do that -- but we don't know where Judge Alito stands, though he has spoken in favor of strong executive power. So this will be an interesting hearing, and if we pay attention, we'll probably get some clues as to what the new court will do in certain areas. Roberts replacing Rehnquist was a straight conservative for conservative swap. Alito for O'Connor? She was often a swing vote. We'll find out more about him as the hearings continue. 
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