Covering the Front and Back Pages of the Newspaper
January 7, 2006
LAW: The Ted Kennedy Credibility Test
In politics, as they say, you can't beat somebody with nobody. Now comes Ted Kennedy, paragon of integrity and exemplar of mainstream thought, to match his credibility against that of Samuel Alito. Let's walk through Kennedy's charges one at a time:
1. 1985 job application : Alito was 35 when he applied for an important political position with Attorney General Ed Meese during the Reagan administration. Alito sought to demonstrate his "philosophical commitment" to Meese's legal outlook. He wrote that the 1964 Goldwater presidential campaign had been his original political inspiration, even though he was only 14 at the time.
What's unusual about this? 14 is about the age when many people start having their first semi-coherent political thoughts. Kennedy's Senate colleague Hillary Clinton was a teenage Goldwaterite. A lot has changed since 1964, and most conservatives wouldn't stick by everything Goldwater stood for then, but the broad outlines of Goldwater's thinking have become the mainstream in the GOP since 1980, and were particularly ascendant in 1985, when Alito wrote the application.
His views on the law, he said, were inspired by his "deep disagreement with Warren Court decisions."
No surprise there. Of course, disagreeing with those decisions doesn't necessarily mean Alito would vote to overturn those, but given his prior nominees and his promises on the campaign trail, it's hard to imagine Bush nominating anybody who wouldn't have deep disagreements with the Warren Court's approach.
He strongly objected to "usurpation by the judiciary" of the powers of the president, and supported the "supremacy" of the elected branches over the judiciary. Not surprisingly, Alito got the job.
And indeed, in a democracy, the elected branches must reign supreme. That doesn't mean the Supreme Court is a lapdog, or that it should be afraid to rein in Congress or the President when they exceed their powers, but the people's representatives do deserve some deference. (Not that Ted Kennedy is arguing here that Congress should not be supreme, just that the president shouldn't).
The views expressed there raise serious concerns about his ability to interpret the Constitution with a fair and open mind.
Oh, puh-leeeze. Justice Scalia has dealt adequately with this point; Justices aren't supposed to be free of thoughts and opinions about the law. It's not on the web yet but there's a great article in today's Wall Street Journal about the nomination of Louis Brandeis [It's now on the web here], who was one of the least impartial and open-minded people ever appointed to the bench. Many Justices, like Brandeis, Ruth Bader Ginsburg and Thurgood Marshall, had backgrounds as deeply ideological activists before coming to the bench.
When this embarrassing document came to light, he faced a difficult decision on whether to defend his 1985 views or walk away from them. When I and others met him a short time later, he appeared to be renouncing them -- "I was just a 35-year-old seeking a job," he told me. But now he's seeking another, far more important job. Is he saying that he did not really mean what he said then?
I've seen no sign that Alito is renouncing the entirety of his prior views; more to the point is that (1) he couched his thoughts in different terms when seeking a political job than he would as a judge, which no doubt is true as well of Stephen Breyer when he worked for . . . Ted Kennedy, and (2) twenty years have passed, and Alito may well not have exactly the opinions he did then. Most of us wouldn't.
2. Membership in "Concerned Alumni of Princeton." In 1972, the year Alito graduated from Princeton University, a group of wealthy alumni formed Concerned Alumni of Princeton (CAP) to resist the growing influx of female, African American, Hispanic and even disabled students who were changing the face of Princeton "as you knew it."
Apparently, 1985 wasn't far enough back for Kennedy. As far as I know, there's no evidence of Alito ever being active in any of CAP's activities. And do we really think this is about hostility to the disabled? CAP seems to have been mainly an anti-co-education group, granted that that may not seem like the wisest thing to join today.
The university's most famous alumnus of the day, basketball star and later U.S. senator Bill Bradley, was invited into CAP initially but quickly found it "impossible to remain a member" because of CAP's "right-wing" views. A special committee of alumni, which included future Senate Majority Leader Bill Frist, accused CAP of presenting a "distorted and hostile" view of the university.
You know, most colleges have these cranky-old-alumni groups - my alma mater, Holy Cross, does - and a lot of people sign their names to them without really endorsing their entire agenda. Kennedy has a small point here, but he really is stretching to go this many years back without any evidence of Alito actually saying or doing anything.
UPDATE: The Daily Princetonian quotes Drudge: "Alito will testify that he joined CAP as a protest over Princeton policy that would not allow the ROTC on campus." (Via Malkin) Given that Alito was himself in ROTC before it was booted from the campus, this is unsurprising. It's also worth noting that the crusade to restore ROTC at Princeton was successful - it remains one of just two Ivy League colleges that permits ROTC on campus.
Alito joined CAP about that time, despite its purposes and reputation, and remained a member through 1985, when he cited his CAP membership as another qualification to join the Meese inner circle.
As the Daily Princetonian noted, "[s]ome alumni expressed surprise at Alito's association with CAP, but at least two suggested he might have put it on the 1985 job application to appeal to a personal connection in the Reagan administration." Alito wouldn't be the first person or the last to try to connect with older alumni from his college in this way.
In 1987, when he was nominated to be U.S. attorney for New Jersey, and in 1990, when he was nominated for the U.S. Court of Appeals for the 3rd Circuit, he did not mention his CAP membership to the Senate Judiciary Committee or to then-Sen. Bradley, who introduced him to the committee at the nomination hearing and endorsed him "100 percent." Bradley says today that had he known about Alito's long membership in CAP he would have had serious questions about it.
Was he asked?
Alito now says he can't remember anything at all about CAP.
Which is utterly unsurprising, if it was a group he signed on with but was never active in. I'm sure a lot of us couldn't name, with 100% certainty, every group in high school, college and law school that we joined or whose events we attended, much less describe all of their activities. And more to the point, none of this has anything to do with "credibility"; a group like CAP may seem distasteful, but this is a square peg in the round hole of an assault on a man's integrity.
3. Failure to recuse himself in the Vanguard case : In 1990, during the confirmation process on his nomination to the 3rd Circuit, Alito disclosed that his largest investment was in Vanguard mutual funds. To avoid possible conflicts of interest, he promised us that he would recuse himself from any case involving "the Vanguard companies." Vanguard continues to be on his recusal list, and his investments in Vanguard funds have risen from tens of thousands of dollars to hundreds of thousands. Nevertheless, in 2002 he failed to recuse himself when assigned to sit on a case in which three Vanguard companies were named parties and listed prominently on every brief and on his own pro-Vanguard opinion in the case. In this case, he and the White House have floated many excuses, but none provided any sensible explanation for his failure to keep his promise or follow his "personal practice" of recusing himself whenever there was any possible ethical question about his participation in a case.
Note: in Vanguard funds, not Vanguard itself. I dealt with this issue at great length here, and concluded that this was a bogus issue. It's also not an uncommon issue in judicial world, as is shown by the cases of Ginsburg (who sat in 20 cases in which her husband owned stock in a party in her first 5 years on the Court) or Breyer (who'd heard a case involving Lloyd's of London despite being an investor); see here on Breyer's recusal issues.
4. His pledge to be absolutely impartial where the government is concerned : While chairing his confirmation hearings in 1990, I asked Alito how he could remain neutral in the cases that would come before him as a 3rd Circuit judge after his more than a dozen years of service representing the U.S. government. He stated that he would be "absolutely impartial" in all his cases. But in case after case involving the actions of U.S. marshals, IRS agents and other government officials, he has sided with the government and against the citizens, even when his fellow judges have told him he was off-base.
So, Alito has ruled in favor of the government more often than Ted Kennedy would. This is a "credibility" issue?
5. His promise to leave his personal beliefs behind when he became a judge : That's what he told me in 1990 he would do. But has he? In November 2000, at one of many Federalist Society meetings he spoke at, he indicated that he was a true believer when it came to the society's longstanding theory of an all-powerful executive.
Note that Kennedy doesn't provide a direct quote here. Certainly, many conservatives believe in a more powerful executive, and a less omnipotent Congress and Supreme Court, than most liberals do. But "all-powerful"? Get real. If Alito believed that he would never rule against the executive, nor even feel the need to offer a reasoned explanation why. This is just rhetorical smoke-blowing, and a rehash of point #1, at that.
His endorsement of presidential power and his criticism of the Supreme Court for undermining it made clear that his philosophical commitment in 1985 still drives him.
Kennedy now makes explicit the fact that he's repeating himself to fill space.
Alito's words and record must credibly demonstrate that he understands and supports the role of the Supreme Court in upholding the progress we've made in guaranteeing that all Americans have an equal chance to take their rightful place in the nation's future.
Note how Kennedy now segues into directly demanding fidelity to Ted's view of constitutional law.
"Credibility" has rarely been an issue for Supreme Court nominees, but it is clearly a major issue for Alito.
What a pitiful excuse for a hit job, really. If this is the best they have, the Democrats are desperate indeed. Kennedy has two charges that have even the slightest specificity to them: the Vanguard case, which at most is the most venial of sins for a judge, given the facts of the case, the extended chain of inferences needed to imagine how it could have affected Alito's finances, and the fact that every other judge to look at the case found it frivolous, and Alito's membership in CAP, which stretches back 33 years and has nothing to do with his credibility. The rest is just hot air about the fact that Alito approaches the law differently than Ted Kennedy would.