From: Dahlia Lithwick
Subject: Sam's Club: Why Alito's Membership in CAP Matters
Wednesday, Jan. 11, 2006, at 7:39 PM ET
Just spit it out
Whatever the little dust-up was that played out this morning between Sens. Ted Kennedy, D-Mass., and Arlen Spector, R-Pa., it had absolutely nothing to do with Princeton, or its Concerned Alumni, or even Sam Alito.
Kennedy starts off by reading some nasty, mean-spirited, racist, homophobic drivel from Prospect—the magazine published by the mean-spirited, racist Concerned Alumni of Princeton, a group proud to once claim Judge Sam Alito as a member. The judge cringes as the leonine senator spits out bullet after bullet. Then Kennedy turns his great spigot of fury on Arlen Specter—who had seemingly ignored his December letter demanding that all CAP-related documents be subpoenaed. There's a Punch-and-Judy scuffle over whether Specter got the letter. Then the senator from Massachusetts intones: "I renew my request, Senator. And if I'm going to be denied, then I'd appeal the decision of the chair. I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination."
...This is no more a judicial confirmation hearing than O.J. Simpson's was a criminal trial.
What makes this process so ill-suited for testing the qualifications of a judge is that judges, unlike United States senators, have nothing to sell. They are lonely, mousy, bookish creatures to begin with, and, at least according the Republican theory of judging, their personal views and past statements are irrelevant, anyhow. The gospel here in the Hart Building is that there are only two possible ways to decide even the most complex cases: Judges either "apply the law" or they "make things up."
Since Alito is evidently the sort who "applies the law," he doesn't have to sell anything this week. All he has to do is show us how he applies law. He's like the pretty blond girl charged with endlessly demonstrating the vacuum. Over and over he demonstrates the case law: This is the precedent/statute/test he'd use.
Several Senate Democrats point out this morning that Alito's involvement with a group dedicated to keeping women and minorities out of Princeton is almost impossible to reconcile with the Alito praised by colleagues and academics as scrupulously ethical. Joe Biden—perennially on the brink of becoming a Saturday Night Live parody of Joe Biden—puts it this way: "You don't impress me as someone—especially from your background—that would want to keep Princeton as—I won't go back and read the quotes—keep Princeton as, you know, 'Imagine my father's 50th reunion, having 40 percent women. Isn't that awful?' You don't impress me to belong to that club." That's an allusion to the Sam Alito who is too blue-collar, too ethnic, to align himself with CAP.
But under Biden's argument there lies a more pointed one: Alito is a proud lifelong conservative. But he's not a lifelong racist and misogynist. You can understand why Sam Alito might have given his heart to the Federalist Society. But, really, why CAP?
Time magazine suggests that Alito swaggered about CAP so late in the game—so long after it was denounced by prominent Americans and so very, very long after his alleged concern about Princeton's treatment of ROTC on campus—because he needed to build up his tough guy cred as a true believer in the Reagan Revolution. He needed to sell them on Sam Alito as Angry White Guy.
But as trivial as the screaming over CAP may seem, it matters. Not because it proves the nominee hates women or minorities or criminal defendants or immigrants. That's a caricature of a conservative judge. It matters because CAP was code in 1985 for all the things Alito refused to write on his application and refuses to discuss before the committee now. Instead of being forthright about his convictions, Alito hides behind the fiction that there is only one way to decide cases. Instead of proudly bearing witness—as he has done throughout his career—to his opposition to the Warren Court's rulings, his disdain for the reasoning in Roe, his preference for states' rights, strong police powers, and "traditional values"—he pretends that all those amassed thoughts and ideas are irrelevant. He pretends—as do his supporters in the GOP—that every one of those thoughts has absolutely no bearing on how he decides cases. And that is just not true.
I recognize why Judge Alito can't talk openly about his convictions. I keep waiting in vain for that brave conversation to take place. I suppose I understand why he cannot stand before this committee and say, "Yes, I believe that most employment discrimination claims are probably bogus; that most cops are honest and that most death-row prisoners deserve to die. Period." That would require a hell of a sales job. But if we cannot have an honest conversation about Alito's legal views and preferences, his coded messages become doubly important.
It's heartbreaking to watch Alito's face when he's pressed and pressed on CAP's vile statements. It's even worse to watch his wife. When Alito says he "deplores" their ideas, his voice cracks, and it's easy to believe him.
It's now 5:15 and Chuck Schumer has led the judge to the brink of a big psychological breakthrough. In response to the umpteenth questioning about why he "plucked out and picked this one group to put on his application in 1985," Alito finally, truthfully responds: "I was applying for a position in the Reagan administration. My answers were truthful. I listed things relevant to obtaining a political position."
Senate Democrats are pummeling Alito with the racist Princeton group because it symbolizes a parody of his beliefs. They know it's a parody. They want to know why it's a parody he so proudly claimed as his own in 1985. If he was just closing the deal with the Reagan administration, he should tell us. If it's code for what he's still selling today, we have a right to know.
KENNEDY: And, finally, you said yesterday that you very likely joined CAP around 1985, just before you were applying to the high- level job in the Justice Department under President Ronald Reagan. I think that's correct.
ALITO: Senator, what I specifically said, as I recall, was, if I had done anything substantial in relation to this group, including renewing my membership, I would remember that. And I do not remember that.
KENNEDY: You called CAP a "conservative alumni group." It also published a publication called Prospect, which includes articles by CAP members about the policies that the organization promoted. You're familiar with that?
ALITO: I don't recall seeing the magazine. I might have seen...
KENNEDY: So a 1983 Prospect essay titled "In Defense of Elitism," stated, quote, "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."
KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking.
It announces that a team of doctors has found the AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings. And the article then goes on with this terrible statement: "Now that the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps Princeton's Gay Alliance may want to hold an election."
In 1973, a year after you graduated, and during your first year at Yale Law School, former Senator Bill Bradley very publicly disassociated himself with CAP because of its right-wing views and unsupported allegations about the university. His letter of resignation was published in The Prospect; garnered much attention on campus and among the alumni.
And in 1974, an alumni panel including now-Senator Frist unanimously concluded that CAP had presented a distorted, narrow, hostile view of the university.
In 1980, the New York Times article about the coeducation of Princeton, CAP is described as an organization against the admittance of women. In 1980, you were working as an assistant U.S. attorney in Trenton, New Jersey.
And did you read a letter from CAP mailed in 1984 -- this is the year before you put CAP on your application -- to every living alumni -- to every living alumni, so I assume you received it -- which declared: "Princeton is no longer the university you knew it to be."
As evidence, among other reasons, it cited the fact that admission rates for African-Americans and Hispanics were on the rise, while those of alumni children were failing and Princeton's president at a time urged that the then all-male eating clubs to admit females.
And in December 1984, President William Bowen responded by sending his own letter. This is the president of Princeton responded by sending his own letter to all of the alumni in which he called CAP's letter "callous and outrageous."
This would be right about the time that you told Senator Kyl you probably joined the organization.