Posted by Orin Kerr:
CAP , the Swift Vets, and Justice Harlan:
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1137078634
The controversy over Alito and the "Concerned Alumni of Princeton"
reminds me a bit of the controversy over John Kerry raised by the
[1]Swift Boat Vets for Truth in the 2004 election. The basic idea
underlying the claim seems to be roughly the same: Decades ago, the
nominee did something or took a position that reveals a very deep and
extremely serious character flaw. Granted, the nominee has shown only
very subtle hints of this character flaw since then. But, critics say,
that's only because he is super-clever at disguising just how evil he
is. If we look really hard, we can realize that the nominee's
impressive record is really a facade hiding something very sinister.
That was the bogus claim about John Kerry in the 2004 election, and
that is the bogus claim about Samuel Alito now.
Looking to past Supreme Court confirmation hearings in particular,
the CAP issue also reminds me a little bit of the problems John M.
Harlan encountered as a result of his membership in the Atlantic Union
Committee and the Citizens Association for the United Nations. Both
were organizations dedicated to improving ties between the U.S. and
other countries. A few Senators feared that Harlan's membership in
these groups was a subtle sign that he was a "World Federalist" with a
secret commitment to surrendering U.S. sovereignty to the United
Nations. Harlan testified that he had little to no involvement in
these groups, and even, in one case, little recollection of having
joined them. He testified:
If you want me to be completely frank about my relationship to [the
Atlantic Union Committee,] until this matter came up in connection
with my nomination, I am afraid that if anybody had asked me if I
was a member of the Altantic Union Committee I might have been
mistaken in saying, "No."
Source: Tinsley E. Yarborough, John Marshall Harlan: Great Dissenter
of the Warren Court 105 (1992)). A few witnesses at the Senate hearing
testified against Harlan, explaining their fears that his membership
in the organizations meant that he was an internationalist who would
allow international law and the U.N. charter to trump the
Constitution. Harlan was eventually confirmed 71-11, however, with 14
Senators not voting. As far as I recall, he never did try to surrender
U.S. sovereignty to the United Nations.
References
1. http://www.swiftvets.com/
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