Posted by Todd Zywicki:
Purpose of the CAP Inquiry (Take 2):
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1137095315
The Comment Boards to my previous posts have a spirited discussion
about what was the purpose of the CAP inquiry by Senator Kennedy
yesterday? There appears to be two possible explanations. One hand, it
may be to simply ask Alito about the organizations to which he
belonged and to ascertain his views today. Or, on the other hand, to
attempt to smear Judge Alito by engaging in guilt by association and
innuendo to suggest that he is racist, sexist, elitist, gay-basher, as
suggested in the article in the Washington Times today (which I noted
this morning).
In deciding which of these two competing explanations is more
plausible, one would expect to see very different approaches to the
questioning by Senator Kennedy. If the purpose was simply to establish
whether Alito had a meaningful association with the organization and
what his views are today, then it seems to me that the questions that
were asked would focus on those points. If this was the purpose, I
cannot see why there would be any need to go into great detail in
expostulating the views of other individuals associated with the
organization, such as reading inflammatory and retrograde articles
written in the organization's magazine. It seems to me that dragging
out these long quotes would be utterly irrelevant to establishing the
questions of Alito's relationship to the group, why he joined it, and
what his views are today.
If, by contrast, the primary purpose of the inquiry is to cast
aspersions and to imply that Alito was (and perhaps is) a racist,
sexist bigot, then all of the hoary details would not only be
relevant, but would be prominently featured as statements buried in
the "questions."
So let's review the actual transcript of the exchange and see which
interpretation seems more plausible in light of what was actually
said. The transcript is very long, and so I have put it under hidden
text for those who don't need to read it again. I have also taken the
liberty of italicizing those portions of the transcript that go to
Judge Alito's association with the organization and bold type on those
portions that appear to be intended to suggest that Alito is a closet
bigot. Obviously some readers will disagree with my classification
scheme, but I don't think it changes the overall balance meaningfully.
([1]show)
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: So, I want to ask a few things that I hope can clear this up.
You have no memory of being a member. You graduated from Princeton in
1972, the same year CAP was founded.
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: Did you know that they had a magazine?
ALITO: I�ve learned of that in recent weeks.
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.�
Did you read that article?
FEINSTEIN: Finish the last line.
KENNEDY: Finish the last line � is, �and homosexuals are��
FEINSTEIN: No, �And now here come women.�
KENNEDY: If the senator will let me just��
FEINSTEIN: Yes, I will��
(LAUGHTER)
KENNEDY: Can I get two more minutes from my friend from��
(LAUGHTER)
Just to continue along.
I apologize, Judge.
Did you read this article?
ALITO: I feel confident that I didn�t. I�m not familiar with the
article, and I don�t know the context in which those things were said.
But they are antithetical��
KENNEDY: Well, could you think of any context that they could be��
ALITO: Hard to imagine.
If that�s what anybody was endorsing, I disagree with all of that. I
would never endorse it. I never have endorsed it.
Had I thought that that�s what this organization stood for I would
never associate myself with it in any way.
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.
KENNEDY: 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.�
You didn�t read that article?
ALITO: I feel confident that I didn�t, Senator, because I would not
have anything to do with statements of that nature.
KENNEDY: 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.
Were you aware of that at the time that you listed the organization in
your application?
ALITO: I don�t think I was aware of that until recent weeks when I was
informed of it.
KENNEDY: And in 1974, an alumni panel including now-Senator Frist
unanimously concluded that CAP had presented a distorted, narrow,
hostile view of the university.
Were you aware of that at the time of the job application?
ALITO: I was not aware of that until very recently.
KENNEDY: 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. Did you read the New York Times? Did you see this
article?
ALITO: I don�t believe that I saw the article.
KENNEDY: 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 letter was the subject of a January 1985 Wall Street Journal
editorial congratulating President Bowen for engaging his critics in a
free and open debate.
This would be right about the time that you told Senator Kyl you
probably joined the organization.
Did you receive the Bowen letter or did you read the Wall Street
Journal, which was pretty familiar reading for certainly a lot of
people that were in the Reagan administration?
ALITO: Senator, I�ve testified to everything that I can recall
relating to this, and I do not recall knowing any of these things
about the organization. And many of the things that you�ve mentioned
are things that I have always stood against. In your description of
the letter that prompted President Bowen�s letter, there�s talk about
returning the Princeton that used to be. There�s talk about eating
clubs, about all-male eating clubs. There�s talk about the admission
of alumni children. There�s opposition to opening up the admissions
process. None of that is something that I would identify with.
I was not the son of an alumnus. I was not a member of an eating club.
I was not a member of an eating facility that was selective. I was not
a member of an all-male eating facility. And I would not have
identified with any of that.
If I had received any information at any point regarding any of the
matters that you have referred to in relation to this organization, I
would never have had anything to do with it.
KENNEDY: You think these are conservative views?
ALITO: Senator, whatever I knew about this organization in 1985, I
identified as conservative. I don�t identify those views as
conservative.
What I do recall as an issue that bothered me in relation to the
Princeton administration as an undergraduate and continuing into the
1980s was their treatment of the ROTC unit and their general attitude
toward the military, which they did not treat with the respect that I
thought was deserving. The idea of that it was beneath Princeton to
have an ROTC unit on campus was an offensive idea to me.
KENNEDY: Just moving on, you mentioned � and I only have a few minutes
left � you joined CAP because of your concern about keeping ROTC on
campus. ROTC was a fairly contentious issue on Princeton campus in the
early 1970s. The program was slated to be terminated in 1970, when you
were an undergraduate. By 1973, one year after you graduated, ROTC had
returned to campus and was no longer a source of debate.
And from what I can tell, by 1985, it was basically a dead issue. In
fact, my staff reviewed the editions of Prospects from 1983 to 1985
and can only find one mention of ROTC. And it appears in a 1985 issue
released for homecoming that year that says: ROTC is popular once
again. Here�s the Prospect, 1985: ROTC is popular again. This is just
about the time that you were submitting this organization in your job
application.
ALITO: Senator, if I��
KENNEDY: So��
ALITO: I�m sorry.
KENNEDY: But the � briefly, please.
ALITO: It�s my recollection that this was a continuing source of
controversy. There were people on the campus � members of the faculty,
as I recall � who wanted the unit removed from the campus. There was
certainly controversy about whether students could get credit for
courses, which I believe was a military requirement for the
maintenance of the unit.
There was controversy, as I recall, about the status of the
instructors; whether they could be given any kind of a status in
relation to the faculty. I don�t know the exact dates, but it�s my
recollection that this was a continuing source of controversy.
KENNEDY: Well, Mr. Chairman, my time is running out. I had wanted to
just wind up on a few more brief questions on this. But I have to say
that Judge Alito � that his explanations about the membership in this,
sort of, radical group, and why you listed it on your job application,
are extremely troubling. And, in fact, I don�t think that they add up.
Last month, I sent a letter to Senator Specter asking a number of
questions about your membership in CAP. And I asked Senator Specter
make a formal committee request for the documents in the possession of
the Library of Congress as part of the William Rusher papers. Mr.
Rusher was the publisher of the National Review, was an active founder
and leader of CAP.
Do you have any hesitancy or reason for us not to look at those
documents?
ALITO: They�re not my documents, Senator, and I have no opinion about
it whatsoever.
KENNEDY: Do you think they�d be helpful?
ALITO: Senator, I don�t believe I had any active involvement with this
group.
I�ve wracked my memory and I can�t recall anything. And if I had been
involved actively in any way in the group, I�m sure that I would
remember that.
KENNEDY: Well, Mr. Chairman, if I could have your attention, I think
we ought to vote on issuing a subpoena to the custodian of those CAP
records.
([2]hide)
So, note a couple of things about this exchange. At no point does
Kennedy establish that Alito had a meaningful relationship with CAP or
that he ever subscribed to the views laid out in the group's magazine.
He quotes the articles from Prospect before he even asks Alito if he
ever even read or received the magazine, much less the articles in
question. He first describes the reasons why Frist and Bradley
disassociated themselves from CAP before he asks whether Alito was
aware that they had in fact done so. And why did Senator Feinstein
find it so darned important to insist that Senator Kennedy finish the
line about women, if the purpose of the inquiry was to establish
whether Alito had read the article? Why say that his explanations for
"membership in this, sort of, radical group" don't add up, rather than
his "membership in the group"?
If the goal is to simply establish the purported facts, isn't much of
Senator Kennedy's rhetoric and order of approach completely irrelevant
or illogical? It seems to me, first you would establish whether he
remembered reading the article and before you quoted the inflammatory
rhetoric in it. Or you would ask whether he was aware that Frist and
Bradley had dissassociated themselves at the time, and if he said yes,
then you might discuss whether he shared their views. But to quote
them and then ask him whether he had ever read any of the relevant
stuff makes no sense at all, if this was his goal.
And if Kennedy were intending to raise questions about why he joined
CAP in the first place, it certainly seems to me that he would have
started the questioning with the discussion of ROTC, not tagged it on
at the end, after he has grandstanded with all of the offensive
quotes. Note that even when he requests the issuance of the subpoena,
he does so by essentially asking Alito if he has anything to hide,
with the innuendo being that he should confess now while he still has
the chance ("Do you have any hesitancy or reason for us not to look at
those documents?" "Do you think they'd be helpful?"). As others have
noted, these documents and what is contained in them have been freely
available for some time, so it also seems evident that Kennedy was
asking these questions and for the subpoena in order to suggest that
Alito had something to hide. And if his intent in this line of
questioning was to find out whether Alito had connections to the group
and to get access to the Rusher papers, why save all of the relevant
questions to the end and take the wide-ranging detour through the
materials in the organization's publication?
If, on the other had assume that instead his goal was to engage in
guilt by association and try to imply that as a result, Alito is some
sort of closet bigot. In that case, Senator Kennedy's line of
questioning makes perfect sense. And this is exactly how the
Washington Times story saw it. And it fits in with the overall
strategy of Alito's critics, which seems to be to attack Alito by
destroying his character and to suggest that he is a biased judge and
person. If that was the goal, then you would first make sure that you
read the inflammatory stuff, and only then would you ask whether he
was actually aware of it or shared those views.
So, as I look at all this, it seems clear to me that the only
reasonable conclusion that can be drawn from this colloquy is that the
primary purpose of Senator Kennedy's questioning was to engage in
guilt-by-association and innuendo to suggest that Judge Alito is a
bigot who lacks the character to serve on the Supreme Court.
References
1. file://localhost/var/www/powerblogs/volokh/posts/1137095315.html
2. file://localhost/var/www/powerblogs/volokh/posts/1137095315.html
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