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This critically important week in the United States Congress – which could decide whether Sonia Sotomayor makes it onto the Supreme Court and whether President Barack Obama's hopes for fundamentally reforming health care live or die – could yet be overshadowed by the ghosts of the war on terror.

Washington is grappling with the explosive revelation in Sunday's New York Times that former vice-president Dick Cheney might have broken the law when he ordered the Central Intelligence Agency not to tell Congress about a top-secret counterterrorism program.

“This is a big problem, because the law is very clear,” Democratic Senator Diane Feinstein, who is chairwoman of the Senate intelligence committee, told Fox News Sunday.

Ms. Feinstein confirmed that CIA director Leon Panetta informed the intelligence committee on June 24 that he had just been told about the program, the nature of which has still not been revealed and which was apparently never fully operational, that he immediately cancelled it, and that the former vice-president had ordered that knowledge of its existence be kept from Congress.

“We were kept in the dark,” Ms. Feinstein said. “That's something that should never, ever happen again.”

If that weren't enough, Newsweek reported on its website Saturday, based on four unnamed but “knowledgeable” sources, that Attorney-General Eric Holder is “leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices,” and that a final decision could come within weeks.

The Attorney-General, who has the autonomous power to appoint special prosecutors, would be going against the wishes of his own President, who has opposed any investigation into the previous administration on the grounds that the country needs to look forward rather than backward.

Mr. Obama must also know that any such investigation would polarize Congress between vengeful Democrats and enraged Republicans, poisoning any goodwill on Capitol Hill and imperilling the President's economic and social agenda.

That agenda is at a critical juncture. Confirmation hearings for Ms. Sotomayor, Mr. Obama's nomination for the seat on the Supreme Court vacated by David Souter, begin today before the Senate's judiciary committee.

The Democrats, and Judge Sotomayor, can make a strong case for her confirmation. She would have more previous experience on the bench than any Supreme Court judge in a century. The American Bar Association has offered its highest endorsement.

Her judicial record, according to impartial observers, is marked by intelligence and restraint, blended with a common-sense recognition that circumstances and backgrounds influence people's actions.

Beyond that, there is her compelling life story. This daughter of the working class, raised in a public housing project in the Bronx, would become the first Latina Supreme Court justice.

The nomination will not be lost for want of trying. Administration officials have been grilling her day after day, in preparation for the confirmation hearings, and Judge Sotomayor has personally met with 89 of the 100 senators, broken ankle and all.

But for some Republican senators, none of that will matter. Southern and western conservative Republicans will attack her foolish comments that a “wise Latina” judge is better equipped than a white male in making some judicial decisions.

And they will take the nominee to task over the Ricci case, in which Judge Sotomayor joined with others on the 2nd Circuit Court of Appeals in affirming the decision of New Haven, Conn., to toss out a test for firefighters because no African American candidates passed that test.

The Supreme Court overturned that decision earlier this month, criticizing the appellate court's handling of the case. The Republicans intend to call Frank Ricci, the firefighter who launched the complaint, before the judiciary committee to testify.

Conservative Republican Tom Coburn of Oklahoma, is typical of the Republican senators who are expected to vote against the confirmation. He believes Judge Sotomayor is “far, far to the left” of Mr. Souter – not a commonly shared opinion – and anyway “it's just the things she says,” that bothers him.

More moderate, and more thoughtful, Republican senators may end up supporting Judge Sotomayor's confirmation, however, both because she is so obviously qualified and because they know Republican fortunes among Latino voters would enter a political ice age if the party united to block the confirmation of the first Latino Supreme Court judge.

The political spectacle over the Bush legacy and the confirmation hearings threatens to distract attention from an even more important issue: the tussle between Republicans and Democrats in both the House and Senate over legislation to reform America's deeply dysfunctional health-care system.

Sunday, on ABC's This Week , one of the most powerful Republican in Congress declared health-care reform is dead.

“There is no chance that it's going to be done by August,” said Republican Senator Jon Kyl, the Senate Minority Whip.

If the House and Senate cannot get legislation passed before Congress rises in early August, then the Congressional leadership won't be able to spend the break reconciling the different versions of the bill, giving Congress nothing to finally endorse or Mr. Obama to sign in the autumn.

“President Obama was right about one thing,” Mr. Kyl said. “He said if it's not done quickly, it won't be done at all.

“Why did he say that? Because the longer it hangs out there, the more the American people are skeptical, anxious and even in opposition to it.”

The administration has set three goals for health-care reform: to lower costs overall, now at 17 per cent of GDP and climbing; to insure the 47 million Americans who currently have no insurance at all, and to do so with at least some bipartisan support.

A mish-mash of conflicting bills and proposals in the House and Senate would pay for all of this by taxing the rich, or forcing the uninsured to take and pay for coverage, or introducing a public provider to compete with private insurers, or compelling private insurers and health-care providers to cut costs, or – well, no one can predict with certainty what the final proposal will look like.

Nonetheless, along the dial at NBC, Democratic Senator Chuck Schumer predicted Sunday: “We expect the House and Senate to have passed bills” in time for the August recess.

He said that bipartisan discussions late last week had left lawmakers “on both sides of the aisle feeling this is doable.”

If a bipartisan consensus on health care is achievable, as Mr. Schumer believes, then any decision by the Attorney-General or by anyone in Congress to pursue alleged illegalities by the Bush administration could be particularly ill-timed.

Mr. Holder told Newsweek that he was aware of the consequences of whatever he might decide.

“You have the responsibility of enforcing the nation's laws, and you have to be seen as neutral, detached, and non-partisan in that effort,” he said.

“But the reality of being A.G. is that I'm also part of the President's team. I want the President to succeed; I campaigned for him. I share his world view and values.”

Stark and epic choices face America's political leaders, on both sides of the aisle, in what have turned into anything but the dog days of Washington's political summer.