The Volokh Conspiracy

Don't let the door hit you.

There is genuine cause for concern about Alito (1) touting his membership in this bizarre organization as late as 1985; (2) insisting today that he doesn't remember a thing about it, except that (3) he claims that he was dismayed at the treatment of ROTC-- which was back on campus by the time he graduated.

This is not tarring him by some attenuated friend-of-a-friend-of-a-colleague chain-- it is asking him about his membership in a discredited group, and trying to understand why he remembers nothing that makes any kind of sense as to why he joined it.

I think the point, Justin, or at least what got me so steamed about Kennedy's behavior, is that the man has completely checked out of the "advice" part of his job. He has shut down on the question of the soundness of Judge Alito's many past opinions and his legal philosophy and ability. Instead, his whole and entire tactic, complete with procedural grandstanding, is to make Exterior Group X look really, really, really bad and then make some nominal connection between the judge whose actual abilities he has failed to critique, and Exterior Group X.

Even setting aside the factual question of whether Alito was active in CAP, and forgetting that he has stated very strongly his disagreement with most of its positions, the McCarthy taste remains: Were State Dept. bureaucrats unfit to work because their names appeared on a bad list? Is Alito unfit for the job because he was a young political activist who wanted ROTC to stay on-campus?

-joe

Despicable post.

By the way, I think the most important thing to learn from the CAP issue is that Alito is obviously lying under oath, which at best allows Senators to be completely skeptical about his newly found "moderated" positions on abortion and executive power, and at most makes him per se disqualified for confirmation.

"I think the most important thing to learn from the CAP issue is that Alito is obviously lying under oath"

And that's obvious... how?

The worst part of the exchange, from my perspective:

ALITO: Senator, if I…

KENNEDY: So…

ALITO: I’m sorry.

KENNEDY: But the — briefly, please.

Yes, Judge Alito, could you keep it brief? We don't want any testimony to interfere with the hearings. Perhaps next time, we could leave the nominee off of the list of invitees. That way, I could have all of my time. After all, it is MINE.

I don't think the Army-McCarthy Hearings are a dead-on parallel. But trying to smear people by their memberships--often quite outdated--in a similar manner was typical of McCarthy. You belonged to group X. Here's what another memeber of X said, which you thus hold to as well.

Belonging to an organization can tell us something about a cadidate. But only so much, and there should be a statute of limitations. (Ask Sen. Byrd.) More to the point, we get into smearing when the appointee has said "again and again and again" that he doesn't support those positions. If there is evidence that he does, present it. If not, stop reading from old opinion sheets.
He's already said that he doesn't agree.

McCarthy is the most recognizable icon we have for political evil in this country. He is the embodiment in our collective, popular view of pursuit of ideology only for personal gain while hurting innocent people. Zywicki is clearly comparing Kennedy to McCarthy. In the comparison, he is trying to make some points too (membership in CAP by Alito is as tangential and inconsequential with respect to Alito's qualification as Fisher's short membership in the Lawyer's Guild was to him; also, that Kennedy "has no shame" and is only trying to score points and does not really care what Alito says), but the thrust is despicable. I, for one, am quite convinced that Alito is lying about CAP. He is rightfully embarassed about it and may have joined only to polish his conservative credentials or maybe someone in a position of power invited him to join and he did it to suck up, but I cannot believe he does not remember.

i'll add my 2 cents that this is the worst post i've seen on this blog.

Agreed. Not despicable, merely lame. Glad you teach law and not humor.

It's pretty obvious that a man as bright as Alito is lying when he says he doesn't remember his affiliation with CAP, particularly when it was important enough to not only remember but extol in 1985 and that he also is able to give an "alternative justification" than "I don't remember." (Also note that there's evidence, though circumstantial, on DailyKos right now that tends to point out that Alito not only extolled but donated money to the group).

I'm not particularly expecting federalist society loyalists to get over their deferential worldview of Alito the icon (this is an Alito whose conservative credentials were extolled throughout law school by my fedsoc friends, but now that he's on the court he's a "moderate"). So I suppose I'm not going to be convincing to anyone whose already made up their mind, broadly, about Alito. But that wasn't going to happen anyway, just like liberals can't come to believe that Kennedy's negligence led to the death of another, or conservatives can't come to believe that Kennedy didn't murder anyone, or countless other ephermal truths in which the facts are sufficiently vague to allow even the most unreasonable possibilities to be asserted.

elliot--

Do you really mean that you cannot believe he does not remember?

Twenty years ago I was applying to college. I have NO CLUE what I wrote in my essays; what organizations I listed; what I said I was going to major in; how many years of Latin I had. Not a clue.

One can be charitable, and assume that he really did not know that this was such a controversial organization. In that case, he probably did forget that he ever joined, or that he listed this on his application.

Question to all readers: If asked what magazines you subscribed to in 1985, could you name them? I know I could not. Just a test--do you REALLY remember who you were back then? I'm a historian, and I've seen this over and over. Something gets done/said/written by a public official. Years later, it takes on a significance that it did not have at the time. And now, no one can BELIEVE that he doesn't remember something so important. This is all presentist, and memories are unreliable.

I remember when the Volokh Conspiracy contributors took pains to present a throughtful discussion of significant legal issues.

Of late it seems to be increasingly drifting into shallow rants and facile partisan speculations.

Too bad.

Wikipedia says Fred Fisher stayed at Hale and Dorr, became a partner, and later served as president of the Massachusetts Bar Association. The Harriet Miers of his era! Looks like Joe McCarthy's insinuations didn't hurt Fisher's career as much as Welch claimed they would. I'm guessing Kennedy's histrionics over CAP won't end up harming Alito's career advancement either.

Thanks Richard.

Meaningless speculation:

Will Kennedy's desire to subpoena the papers of a magazine published make Justice Alito more sensitive on protection of the press issues?

Wouldn't it be nice, as the Beach Boys said.

And your evidence is . . .


(Maybe I just isn't that bright. After all, I is a Hoosier.)

VC posters make a point, rightfully, of criticizing those who, instead of thoughfully supporting their own positions, argue against an opponent's position by comparing the opponent to Hitler . The analogy is rarely apt. This post, it seems to me, makes a mistake of the same vein. Any debate about McCarthy aside, he is a controversial and widely reviled figure, and has come to represent, rightly or wrongly, a very negative aspect of our country's history. Invoking his name is a cheap trick, and much easier than providing an intelligent argument as to why Senator Kennedy was out of line.

I was taught in first year Legal Research and Writing class that the use of the word "obviously" simply means that the point made is, in fact, NOT obvious. If it were obvious, the word would be unnecessary.

I'm glad to see this post.

When I saw the exchange on CSPAN, I was IMMEDIATELY reminded of the Welch-McCarthy exchange, as well. However, I was reminded of it for NONE of the reasons that many of the folks are taking umbrage at in this thread.

What made the historic exchange flash through my mind was when Specter said, in essence "Senator, you have been sitting next to me all day and never said this before now, so I'm less than inclined to consider it a serious request."

That's the real objection that Welch made to McCarthy. Specter made it to Kennedy today. An obvious parallel to anyone who looks fondly on the Welch exchange as a wonderful watershed in American history. It would have been a great comment for Specter to make, too, if it hadn't been based on a fallacy: namely, his office actually HAD received Kennedy's letter.

That's what reminded me of the parallel. I can't speak for what went through Todd's mind, but so many of you are happy to assume the worst...

Lets not forget that the entire concept of Kennedy's attack is guilt by association. As Alito deftly pointed out, it would be impossible for him to embrace whole cloth every opinion held by the group and each of its individual members... he doesnt even qualify for many of them.

I'd like to see Senator Graham read into the record something like this:

'Senator Kennedy, did you or did you not belong to the Democratic National Committee, serving as a Senator between the years 1963 and 1978? Do you recall the words of your fellow DNC Senator James Eastland when he said of a fellow senator, Jacob Javits of New York, who was Jewish, "I don't like you-or your kind"? What else is on record with your fellow DNC members of the Civil Rights era? Can we go into Executive Session to subpoena the words of you fellows? Do you truly claim to have joined an organization whose members spew the worst kind of racist filth and expect this committee to believe you didnt agree with them?'

Remember, only Republicans can be dragged through this kind of process. IF this were a democrat appointment, can you just picture the outrage, OUTRAGE?

Democratic SCOTUS nominees didn't get dragged through this because the GOP told Clinton that, had he picked outide of a pre-approved group, they would do far worse. Both Breyer and Ginsberg was in that group. The Democrats tried to do the same - Miers was in that group, apparently. Alito obviously was not.

Dear God,

Please let Chappaquiddick Kennedy and his fellow Senate Democrats be dumb enough to filibuster Judge Alito.

Dear God,

Please help all the Kennedy-haters realize how shrill and pathetic they sound when they invoke Chappaquiddick.

Twenty years ago I was applying to college. I have NO CLUE what I wrote in my essays; what organizations I listed; what I said I was going to major in; how many years of Latin I had. Not a clue.

But that's not really the issue, is it? If I showed you your college applications, you don't think that you would remember your membership in certain organizations? To put a finer point on it, if I showed you that you had been a member of the Latin Club, you wouldn't remember, "Oh, yeah, I was a member of the Latin Club because I took several years of Latin, and our teacher gave us extra credit for joining the club."?

Furthermore, we're not talking about college applications here either. Time is precious for adults in their mid-30s, and they are selective about the organizations of which they are members. And adults are selective about the memberships they disclose on federal job applications.

So, yes, Alito is obviously lying when he says he doesn't remember having anything to do with CAP. I would accept something along the lines of "Well, was never that involved, but I signed up for their mailing list once, and I thought that if I said I was a member it would score points with the Administration." But it's simply not credible that an otherwise mentally competent adult would have no recollection of even joining a group that he thought was important enough to put on a job application. It's just not.

In my Evidence class, I remember being taught concepts like memory refreshed. Being young, I didn't understand the concept, either you remembered or you didn't. Years later, associates would ask whether I worked on a project. I wouldn't remember and would say no. They later could show me the work I did (with the usual smugness of the young and perfect). Sometimes, I still wouldn't remember the work, but I did recognize it as mine. I guess I was obviously lying then when I said I didn't remember.

I bet Joe McCarthy would have saved Mary Jo Kopechne.

And what's wrong with Kennedy's request for documents? This isn't a fishing expedition. There's no question that Alito did join the organization. We only want to know what, if anything, his role was in the organization that had very offensive opinions.

I have no opinion on Alito other than I can totally see how he could not remember this. The other day I found an Alumni Card from my college and I would have sworn to anyone that I was never a member of my college Alumni Association. I graduated 10 years ago so we are not dealing with 20 years like Alito. Now obviously I signed something at some point or signed up in the mail but I couldn't remember it. At the same time, I am sure if I had been applying for a job not long after I joined the Alumni Association and I knew the person hiring me went to my school I would have made sure I would have put it on my resume.
As a litigator, I have seen many a beleivable witness not remember something that even they admit in retrospect seems like something they should remember. People's minds are fickle that way.

soon after his nomination, I vaguely recall reading/hearing that "sam knew early that he wanted one day to be a SCJ". if true, why in the world would he have done/written things so likely to come back to haunt him: CAP, Roe, the Warren court, et al. either the quote is false, "early" doesn't mean what it used to, or his judgment is questionable. that's the one thing that makes me lean toward believing him re CAP: it seems incredible that at that age (35-ish) he would knowingly have created this potential vulnerability.

Bobbie,

I'm not a Dem, but I still don't share the vitriol that a lot of people have for Kennnedy. I see nothing inherently "wrong" with his request for documents (while recognizing that there is an element of grandstanding and fishing involved).

Specter was clearly mistaken when he suggested that his office hadn't received Kennedy's earlier letter requesting help getting access to the documents. It was Specter's umbrage that led to an escalation. Specter felt Kennedy was trying to grandstand and got hot about it, and when Kennedy corrected him and noted that the letter had been sent, Specter then got defensive about that. So he was a little off-balance and unwilling to rule at that point on Kennedy's request.

With the tempers flaring, Kennedy wanted to make a point that it was something that he wasn't going to allow to be neglected. Specter took it as a threat and an attempt to dictate to the Chair. Kennedy may have been unwise in the way he spoke, but Specter really has to take his share of the blame for responding with far more indignation and defensiveness than was appropriate.

Of course, when Kennedy later entered into the record the response he had received from Specter's office, Specter assented to Kennedy's request. In fact, the request for access to documents IS germane, and if Kennedy wants to delve deeper into the CAP issue, I guess it's appropriate to do so by checking out the documents in question.

All of that said, as I've mentioned above, I think Kennedy's request is an injudicious (pardon the pun) focus on a non-issue, when there are more important issues to elucidate.

"Are you now or have you ever been a member of the Federalist Society?"

So Welch badgering McCarthy into naming Fisher. The NY Times had already written about the Fisher matter anyway. I don't see the connection.

It is a fishing expedition because if it were honored, and the documents were produced, assuming, of course, that Kennedy doesn't already have them, which he probably does, not a single vote in the committee is going to be changed. The Republicans are all going to vote for judge Alito, and the Democrats are almost all, or all, going to vote against.

If Kenney were serious about it mattering as to his own vote, then I would say, fine, delay the vote in the committee and give him the papers. But he isn't going to vote for Alito, even if the judge had already been Beautified by his Church.

The whole purpose is to stall and give some red meat to all those who contributed to stop judges Robers and Alito.

My memory for the events of my own life is awful, even with documentation. Some things from my life do come back crystal clear. Most don't. I can look at documentation of events twenty years ago, and not remember them at all. I can look at documentation of events in Novemeber and barely remember them. But I do remember that the most common isotpe of uranium has an atomic weight of 238, even though I have nothing to do with nuclear weapons or energy.

Go figure.

Me, I figure that most people who can detect an obvious lie mostly don't understand the nature of lies and certainly not the nature of human beings. Is there any evidence allowed in court more unreliable than the testimony of an eye-witness?

Yours,
Wince

If Kennedy were serious about it mattering as to his own vote, then I would say, fine, delay the vote in the committee and give him the papers. But he isn't going to vote for Alito, even if the judge had already been Beautified by his Church.

Too bad for Kennedy (and democrats) that turned out to be a cluster you know what--- The papers are being photo copied pronto! Stupid bluff.

But of course leave it to the chief abuser to reduced Alito's wife to tears..sympathetic wives everywhere. Great strategery Dems!

Being forgetful about a past experience is understandable, and perhaps even expected, if you haven't researched and tjem had a long time contemplate.

If you can't tell somebody why you joined the the Latin group, or greenpeace membership, or why you worked on a certain matter, that's fine. But if you (presumably) research what was going on at the time and what else you were doing, and if you took time to contemplate, you presumably would have a much better memory of what your life was like at that point.

This CAP thing wasn't exactly "sprung" on Alito. His answer may have been fine a month ago, but it's more than a little unbelievable today.

But of course leave it to the chief abuser to reduced Alito's wife to tears..sympathetic wives everywhere. Great strategery Dems!

Yes, I've just noted that this spin has just popped up on the Drudge Report and is making its way around the right-wing blogs even as we speak. I'm sure it will make its way into the zeitgeist by morning.

However, it wasn't the Dems that made Mrs. Alito start crying. Aside from it being a very long and grueling day, it was Lindsey Graham's very moving, tear-jerking praise of her husband that got the waterworks going. It even had Graham breaking up at one point.

You know, just keeping the record straight.

Lotsa folks want to blame the Dems for being ogres when they're doing their jobs. Sure, they're inclined to do their jobs more diligently in this case perhaps more for partisan reasons than not, and I can get a little miffed about that, too.

But it's downright scandalous (or should be) that the Republicans are bending over backward to be Alito's advocate and not doing any heavy lifting at all. They're supposed to be doing some serious work, here. But it just seems that most of them are trying to do their best to get the guy confirmed as de facto members of "Team Alito". That's a serious abdication of their responsibility, in my opinion.

Folks are right that the comparison is despicable.

Senator McCarthy allowed a woman to drown. Senator McCarthy made Communists and their sympathizers cry.

How dare anyone insult Senator McCarthy by comparing him to Senator Kennedy.

When I watched, yes, McCarthy came to my mind.

It is the guilt by tenuous association. You belonged to X association, X association had members who said ... therefore, you are.

Many of you are lawyers. You probably belong or intermittently belonged to the ABA. ABA has dozens of publications. I have no doubt that we could find some outrageous stuff in one of them 30 years ago. Therefore you are an extremist and endorse those views? No?

How about your college? Have any outrageous alumini? Support the Columbia Law School Equal Rights Advocacy Project?-- they had a proposal that would have knocked the age limit for consent under statutory rape way down (12 I think) -- so you support pedophilia, right? The co-author was Ruth Bader Ginsburg -- if you didn't support her Columbia project, but did the ACLU surely we can still impute the views to you, you dirty old man. If not, let's dredge through the ACLU court briefs and find something. Hey are you a beekeeper? I know one who is a released murderer -- if you keep bees are you a murderer too?

"Guilt by Association" is not hard to understand - unless, apparently, it is incovenient.


Lotsa folks are decrying the Dems for espousing "guilt by association". I don't happen to believe the CAP line of questioning is fruitful, but I respect the Dems raising the issue. What I see happening is that Dems aren't getting the answers they need to be able to decide if Alito actually held racist/sexist views in the 80s. He has clearly said that he doesn't today, and I believe him.

Dems are not saying Alito DID espouse such views back in 1985 simply because he was a member of CAP. But they are noting that CAP held racist/sexist views and asking whether Alito agreed with them at the time. That seems a fair question.

If, in 1985, I said on a job application that I had been a member of some organization back in college, and it turned out that the orghanization held some pretty despicable views, it would be entirely appropriate for an interviewer today to ask me whether I shared those views back in the day. That doesn't make my interviewer trying to paint me as "guilty by association". It's just a reasonable inquiry.

No, the Dems have no love for Alito and would be happy to see him not confirmed. But I'm happy they're being aggressive on this. It's what our Senators are supposed to do in these hearings, remember? Not lick the nominee's boots clean for him.

Quite frankly, I expect Alito to be confirmed. But if the Democrats are erring on the side of being very enthusiastic in their inteviewing him, I'm happy with that. Given that they're confirming a lifelong appointment as a SCOTUS Justice, I'm glad to see some senators being enthusiastic about their responsibility to vet the fellow.

"Obvious" is being used not to connote anything that is obvious, much to the contrary, but rather to convey an authoritarian and imperious insistency that others march in lock-step, or minimally remain docile and conforming, before the low-born, presumptive charge of "lying". But none of this has a thing to do with an imperiously insinuating, McCarthyite, guilt-by-association ploy! Harrumph!

On the other hand, and not by analogy but via equivocation, compare Bush/Blair to Stalin/Hitler and once again the imperious gaze ensues, searching for any who fail to actively conform or, minimally, remain docile and subservient. But none of this has anything to do with a McCarthyite, guilt-by-association harangue. The very thought!

So much for open-mindedness and the ability to self-critique. When the imperious insinuations or machievellian maneuverings of a Schumer or Kennedy are questioned or called into doubt, 'tis a sign witches and heretics in the body politic are about.

Hoosier says, "When people say "Orwellian," I tend to think of the rat-basket scene in "1984." Not his criticism of sloppy writing or poor word choice."

Perhaps. I thought about this after I posted. I think that the two are tightly interrelated, as Newspeak and "Politics and the English Language" demonstrate. On the other hand, I may be guilty of some poor word choice myself; it would have been better to say something like "Orwell would no doubt be disgusted."

Since he clearly couldn't say "I fear Alito shall always bear a scar needlessly inflicted by Kennedy, and think that Kennedy showed unforgivably reckless cruelty" without looking silly, he resorted to something much vaguer but attempted to retain the association with McCarthyism. Here's what Orwell has to say on the subject:

The writer either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not. This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing. As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse.

(Politics and the English Language)

Invoking McCarthy in cases like this one, like invoking Hitler, is pretty silly.

Dave

People!

This post made a point! Even if you disagree with it, there is no need to express venom towards it.

You are not a serious intellectual if you cannot respect points that aren't simplistic and in accord with what you already thought.

Is Kennedy holding Alito responsible for something that occured a quarter century ago that has nothing to do with his judging record? Has Kennedy repeatedly distorted the record on Alito? Recall that spat about never finding Alito suppporting a Black person in discrimintaion cases. He should have asked Alito if tha was so, but in stead he told the world what he thought... and he told them something that wasn't true!

Kennedy is testifying, not seriously examining. His only disagreement with Alito is that he is republican. He does not care that Alito has shown himself to be fair and wise.

To not see this is to be extremist. Regardless of what minor details make this analogy less apt, it's still a great analogy. People should not be judged like this, on their reading material, on their college orgs, on their political opinions vaguely suggested long ago.

Republicans, for al ltheir faults, are truly lucky politically that Democrats are so forgiving of their corrupt and, frankly, evil Senators.

Alito is qualified to sit on the Supreme Court, but I am unsure this should be sufficient; for two reasons.

More than 9 people are qualified to sit on the Court. There are probably well over one hundred judges/lawyers/academics who are as smart, well-versed in the law, display good judgment etc. as those who currently sit on that bench. This is quite an achievement, not a slam on the current Justices.

In my ideal, a qualified candidate would always be nominated. The questioning would revolve around why this, rather than another, qualified candidate should be appointed. The discussion would invariably turn on the legal issues that have importance in the day. Nobody's integrity would be impugned, nobody's wife would cry.

Second, I'm libertarian/conservative, and I believe that checks and balances existing between branches that are constitutionally compelled to share power provides a greater protection of liberty than do checks and balances between parties that are allowed to consolidate governmental power.

The question, for me, is this: How should we divide power among those vying to decide who among the qualified is appointed to a life seat on the highest court of the land?

Because I would like to promote inter-branch separation of powers, and I would promote a questioning ethic that encourages party disunity. By keeping it Republican v. Democrat, the only real check is whether the party who won the presidency also won the Senate (regardless of how they did in the House or the States.)

I don't see how Kennedy's line of questioning was attempting to show "guilt by association." His line was not:

1) Alito claimed membership in CAP
2) Person X also claimed membership in CAP
3) Person X supported Y
4) Therefore Alito supported Y

Rather, he was following

1) Alito claimed membership in CAP
2) The CAP newsletter claimed Y
3) Therefore Alito (perhaps) supported Y

That is a much stronger point (though hardly ironclad). If the official newsletter of an organization that I belong to publishes an article that espousing certain positions, I think it is reasonable to ask if I too share those positions. Of course it is certainly possible that I don't, and I should be given the chance to say so and to explain what positions I do agree with that would explain my membership. (And if there aren't any positions of agreement, then it leads one to wonder about my sincerity, either then or now.)

Kennedy's points, ultimately, may fail to be relevant, but it is not of the same nature as McCarthy's attempt to discredit someone by setting up a true guilt by association.

I'm struck that anyone can watch the hectoring and badgering by Kennedy and Biden and say that they are just being "enthusiastic" while fulfilling their "duty" and that if Alito can't take it, then he shouldn't be a SCJ (yeah, like this is preparing him for the treatment the Justices get every day). They are being deliberate jerks. You can get all the information you need from someone without treating him him all the contempt you would show a serial pedophile who was caught stalking your daughter.

And the Republicans aren't "doing their job" because they are showing him respect? Were they not doing their job during the Ginsberg hearing (or any other Clinton nominee for that matter)?

Though I don't really care for McCarthy comparisons because he is too iconic, I think the point being made here is the Dems are obsessed with character assassination rather than reviewing Alito's judicial career honestly.

Kipli's comment is spot on. Thank you.

And Dustin, your exhortation to folks to not be extremist or spew venom at points you disagree with would likely carry more weight if you didn't end your comment by accusing the Democrats of being "corrupt and, frankly, evil Senators."

Wouldn't it? Or is this simply a case of cognitive bias and extremist venom being justified because it's a position YOU happen to hold?

What was invoked in the original post was not a precise parallel with the entirety of "McCarthyism" but instead was an analogy, one alluding to the highly charged, emotionally laden, guilt-by-association ploys effected, minimally, by Schumer and Kennedy. What was invoked was one episode and exchange involving McCarthy's sop, his standard operating procedure.

As such the analogy is perfectly fitting, discomfiting as that is for some to come to terms with. Knocking it down with a strawman exaggeration, by comparing it to or invoking the entirety of McCarthyism, proves nothing. This episode was telling, failing to come to terms with it is equally telling.

And we won't know the extent of Alito's invovlment until we get those documents. He has quite the selective memory.

The NYT saw the Rusher papers before it wrote its story on Alito and CAP and didn't find a significant mention of him in them.

Since appointees can't speak freely in Senate Hearings, one can hardly complain that appointees don't speak freely.

The (informal) rules of the Senate generally prevent you from telling Senators what you actually think of them.

I'm not sure what was wrong with CAP in any case.

The junior Senator from NY chose to attend a single-sex college so she must have favored it in some sense.

Single-sex schools are perfectly legal and even have left-wing advocates when they are female only.

Opposition to affirmative action enjoys broad political support and is perfectly legal.

The left-wing pestholes that pass for tertiary educational institutions these days establish that past critiques of such institutions were, if anything, understated.

Question to all readers: If asked what magazines you subscribed to in 1985, could you name them?

And, assuming that you could, would you stand behind every assertion made by every author of any article that appeared in that magazine, either during the time of your subscription or at some other time?

Or would you think it made sense to subpoena the writings and personal papers of someone who had written for that magazine in order to consider your candidacy?

Right Gregg. She was crying, so it's reasonable to assume she was upset about something bad that happened to her or those she cares about. Graham was talking about the vicious treatment a few Democrats just game her hubby, and Mrs. Alito cries. So it's obviously not Kennedy and friends who made her upset, it's Graham!

If I get sad when someone talks about a loved one who is dead, I'm not crying about the death! I'm crying about the commentary about it! Or maybe that line of reasoning is ridiculous.

The future of both parties, I really hope, is not in the hands of those who forgive such viciousness. Gregg, you are applauding someone who,in strong language, accusses Republicans of lying... lying! for assuming Mrs. Alito is upset because of the Democratic assault.

You actually thank him for vicious demagogoury that it patently ridiculous. this is the sort of intellectual dishonesty I'm talking about.

Most Democrats hate this sort of crap just as much as Republicans hate Abramoff style corruption.

The praty that grows will be the one that casts aside its own problems, not the one that hypocritically hates its opponent in vain.

If only Ted Kennedy were merely guilty by association.

Here's a guy who was caught cheating at Harvard - twice - and expelled before being readmitted because his daddy was famous.

After that, he probably wasn't surprised at his success in drowning that girl in the river and getting away with it.

Terrible post Zywicki.

When people point out the long, liberal love affairs with Lenin, Stalin, Knrushchev, Brezhnev, Andropov, Mao, Ho, Castro, Ortega, Chavez and on and on, pinkos almost faint, then start oinking about the illogicality and inherent unfairness of guilt by association. Then they do something like this, and see nothing wrong with it.

Charlie (Colorado) writes:

Question to all readers: If asked what magazines you subscribed to in 1985, could you name them?

And, assuming that you could, would you stand behind every assertion made by every author of any article that appeared in that magazine, either during the time of your subscription or at some other time?

Let me guess: you think Alito's curriculum vitae, when it referenced CAP, was merely asserting that he subscribed to the magazine. Heck, who among us doesn't put his magazine subscriptions on his résumé?

Shorter Judge Alito: "I can't recall specifically why I subscribed to "Playboy," but I'm fairly sure it was for the articles."

One question I was hoping someone would ask Alito:

Do you believe that Article II of the Constitution allows the President, as the Commander-in-Chief, plenary power to ignore the Laws of Thermodynamics when we're in a state of war?

I would have been very interested to hear his response.

/snark

Sorry, but that's about as relevant as any other "information" we're getting out of these hearings. Dems are condemned when they try to dig deep and Republicans refuse to dig deep. So it's all pretty much just kabuki.

Associate Justice Alito. Has a nice ring to it...

Since my post has come up a few times, let me respond briefly:

If you showed me my college applications now, I doubt that it would help much. I am plenty capable of forgetting. As are you. This format does not allow me to prove it to you. But I doubt that readers of this blog are immunue to the laws of brain science.

And, yes, I think my memory was BETTER when I was 18 than when I was 35 with a mortgage, a job, and two young and sleepless children.

I have granted both Democrats and Republicans the benefit of the doubt on this one. Unlike a few posters on this site, I don't know when Alito is lying. I question my own epistemological flawlessness on a daily basis. So I try to be a bit careful.

And, sorry, but "proven" is an attributive adjective, not a participle. A PROVEN fact is one that has been PROVED.

My grammar stands corrected.

Let me get this straight, because Alito was a member of CAP and a 'member' of CAP wrote an objectionable letter, Alito musrt be guilty of sharing the views of that writer ?

Where do you see anyone made that argument?

It might be a fair point of enquiry. It was asked. Alito vehemently denounced the views as abhorrent to him.

Then it was reasked, alluded to, repeated, pointed to, etc.

Excellent post.

I clearly remember seeing the original Welch/McCarthy exchange on TV at the time and believe that the complete flavor of it can't be fully appreciated by merely reading a transcript. In my view that incident marked the low point of McCarthy's reign of terror and the high point of public disgust with his tactics. Accordingly, after witnessing the kangaroo-court questioning of Judge Alito by Senator's Kennedy on TV today, I consider the Zywicki analogy entirely appropriate. That anyone with Kennedy's personal history would have the chutzpah to question the moral character of anyone, let alone a man of Judge Alito's caliber, is as incomprehensible to me as is some of the criticism of Mr. Zywicki's post I see above.

WJ Hopwood writes:

That anyone with Kennedy's personal history would have the chutzpah to question the moral character of anyone, let alone a man of Judge Alito's caliber

Let's see: Ad hominem against the questioner? Check. Assuming the conclusion with a reference to Alito's "caliber"? Check. Implying bizarrely that someone with moral failings has no ability to identify, or even inquire into, potential moral defects in another? Check.

Someone remind me: is it Ted Kennedy or Sam Alito under consideration for a lifetime appointment to SCOTUS?

Exactly, Apodaca!

An ad hominem, a begging the question and a tu quoque. Three logical fallacies in a single sentence. Nicely called!

Your ideas intrigue me and I would like to subscribe to your newsletter (but you will excuse me if I refrain from joining your organization).

"Since the whole "The Dems made Mrs. Alito cry and leave" lie is already spreading like wildfire, I think it deserves another quick does of reality.

As another conservative, John Cole, notes:

"I don’t like Kennedy. At all. I think Schumer is a grandstanding fool and a pompous ass. I think Patrick Leahy is as partisan as they get, and not to be trusted. But only the most patently dishonest person on the planet would claim that Mrs. Alito left after a Democratic attack. She left after REPUBLICAN Sen. Lindsey Graham was basically praising Alito, defending him and reciting some of the things that have been said about Alito. "

God, how I love people who can see black as white !

Kennedy has one saving virtue. He crewed in the Transpac Race in the 1950s. Other than that, he has no saving grace.

I listened to Susan Estrich coo about how she loves him tonight. They would make a good pair. They even look alike.

This is an unmitigated disaster for Democrats. The Biden Princeton sound bites are worth the price of admission.

While the analogy with McCarthy is a bit strained, Teddy is employing the "Big Smear" tactics that the Democrats and the left in general whimpered and whined about in the '50s and dined out on periodically since then.

Now that the Democrats are in the process of losing their last stronghold in our three-branch government, ethically-challenged bullies like Kennedy are reverting to the very tactics they deplored in Joe McCarthy.

Hypocrites and bad losers! At least Kennedy, Leahy and Schumer seem to fit that bill. Biden is a joker just having a good time.

I'm not a lawyer, but I would like to have all the Senators simply ask Judge Alito a question without all the BS and sit back to thoughtfully listen to his answer. Then maybe we might learn something about the man, his views and then make a righteous decision as to his capabilities. What we have is grandstanding for their consituents over stuff that has not a wit of importance.

The NY Times already dug up the CAP stuff and I would have thought had there been really daming stuff on the Judge it would have been on page one, above the fold. Maybe Senator Kennedy missed that day's edition?

And it would be kind of nice if a nominee could actually state their position on Roe without being pounded by the opposing side. Something like: "Senator, I am a pro-abortionist. I think killing millions of innocent unborn babies is just find and dandy regardless of the moral and economic concequences will be to our country. Roe was so great of a decision that it should be made the 11th commandment." Or, "Senator, I am a anti-abortionist. I think killing millions of innocent unborn babies is morally repugnant and historiclly has only been practiced by the most barbaric of civilizitions. And I am deeply concerned about the dehumanizing moral message it sends to our citizens as well as the pending economic disaster when we don't have enough people to support the huge numbers of seniors on social security in about 20 years." In either case, the nominee most likly would still be confirmed!

Regarding the comparison between McCarthy and Kennedy: I can see the resemblance but I think Kennedy takes the art of bullying to a new low. Guilt by association never really works very well. Usually makes the accuser look small, petty, and the act of a desperate man who can't find anything of substance to inquire about or is on the loosing end of the arguement.

It is also a real kick to read about the reason President Clinton's nominees sailed through because he had them "pre-approved" by the committee. Again, I'm no lawyer, but from my 7th grade civics class I don't recall the constitution having that procedure listed? I wonder using the "Clinton" approach, did we really get the best nominee? or just a dumbed-down, whoever-we-can-get-away-with judge?

Good Blog topic that got a lot of chatter!

I know some disagree with the analogy, but as I read the details a few hours back - McCarthy was one of the first thoughts that lept to mind as I blinked and squinted at Kennedy's comments and questions.

Why are they trying to tar Alito with the opinions someone else wrote in a magazine, that he had nothing to do with, and that had the standard disclaimer "the views of the writer are his own and not of this publication"?

Something to take into consideration from that same time period in Alito's life:

Alito writing backed privacy, gay rights
By Christian R. Burset and Alan Wirzbicki, Globe Correspondents | November 2, 2005

PRINCETON, N.J. -- As a senior at Princeton University, Samuel A. Alito Jr. chaired an undergraduate task force that recommended the decriminalization of sodomy, accused the CIA and the FBI of invading the privacy of citizens, and said discrimination against gays in hiring ''should be forbidden."

The report, issued in 1971 by Alito and 16 other Princeton students, stemmed from a class assignment to study the ''boundaries of privacy in American society" and to recommend ways to protect individual rights.

''We sense a great threat to privacy in modern America," Alito wrote in a foreword to the report, in 1971. ''We all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy."

A classmate, Jeffrey G. Weil, said yesterday that Alito, one of the top seniors in his class, had been selected to advise juniors writing the report, coaching them through the research and then writing an introduction explaining their recommendations.

As he was not active in Prospect, the organizations magazine, nor a major player or donor, it could be more easily reasoned he joined to create conservative bona fides for a job application.

David Kirkpatrick, of the NY Times, has already gone over the papers that Kennedy wants to see, and mentined them in his article:

Mr. Morgan's memorandum and other records of Concerned Alumni are contained at the Library of Congress in the papers of William A. Rusher, a leader of the group and a former publisher of National Review.

Those records and others at Mudd Library at Princeton give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, was among the group's major donors. He was not an active leader of the group, and two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.

The GOP has some other quotes from Prospect Magazine that contradict the articles and we don't hear, but they only provide dates and not links to their Prospect quotes:

“CAP Will Strive To Fill An Obvious Void By Functioning As A Mature, Independent Agency Qualified To Evaluate The Directions Being Taken By Princeton University, To Provide Constructive Criticism Where Indicated, To Funnel To Appropriate Administrators Opinions And Suggestions Received From Individuals Or Groups, And To Keep The Alumni Informed And Up-To-Date Regarding Important Happenings On The Princeton Campus, Making Certain That Both Sides Of Controversial Matters Are Covered.” (Asa S. Bushnell and Shelby Cullom Davis, CAP Co-Chairmen, Letter To Princeton Alumni, 10/9/72)

CAP’s Prospect Magazine Praises Princeton’s Diversity. “In The Course Of The Last Ten Years The Admissions Office Has Parlayed This Rich Applicant Pool Into A Newly Diverse Student Body. As Women, Blacks, And Hispanics Assume More Prominent Roles In The Nation’s Elite, Princeton Will Maintain Its Place As A Training Ground For Leadership.” (“Princeton University Today: A Positive Overview,” Prospect, Spring 1978)

“As Undergraduates These Students Provide A New Dimension Of Diversity And A New Perspective On Social Issues.” (“Princeton University Today: A Positive Overview,” Prospect, Spring 1978)

“As Graduates They Open New Realms Of Alumni Achievement, Bringing The University’s Influence Into New Spheres Within Society.” (“Princeton University Today: A Positive Overview,” Prospect, Spring 1978)

This is more a case of irrelevance being used to posture for political purposes and to assassinate the character of Alito. Nothing more.

And how exactly does one impeach a questioner?

Good point. In confirmation, part of how the game is played is that the person being questioned never impeaches the person doing the questioning. Instead, other "questioners" do that, back and forth.

Interesting political theatre.

The best part of this thread is the refresher on how younger people think. That has been useful to me.

Otherwise, politicians act like politicians. That is what they do. Every so often they don't, but for the most part, they do. I'm not sure there is any good reason for outrage about it, other than the fact that it is so often ineffective.

Thanks to WaltT for reminding us of how appropriate Judge Welch's words are for the blunderbussing bully that Teddy Kennedy has become. "You've done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?"

Teddy lost his decency when he was booted out of Harvard for cheating, then drunk-drove a staffer "date" to an early death by drowning, and then finally ran against Jimmy Carter in 1980 for reasons he was unable to articulate in a famous interview with an NBC news anchor.

Thus assuring Ron Reagan of an easier run for President. Does anybody remember Teddy's lowlife role in the destruction of the Democratic Party by his '80 Presidential Campaign? Now he is an "old [toothless, impotent] lion" by the liberal media.

When he was younger, his inappropriate behavior and inordinate ambition wrecked the Democrats' paramount position in US politics until today, he is present at their loss of the Supreme Court.

I was a Democrat back then and remember all too well. [Except the name of the NBC anchor escapes me, oops, Roger Mudd. Roger's career was ruined by his venture into honest journalism in questioning the chronic inebriate candidate so closely back in 1980, or so goes a cautionary tale I heard when working later for NBC-TV.]

Back then, Teddy was a precursor of The Exempt Media, I guess.

I can't say I often agree with Biden, but I admit that what he had to say in this article struck me as being pretty wise.


Namely:

Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.

..."The system's kind of broken," said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito.

"Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues," such as a president's authority to go to war, said Biden.

As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC's Today show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote.

"Just go to the Senate floor and debate the nominee's statements," the Delaware senator said, "instead of this game."

That was once standard practice. Until 1925, Supreme Court nominees were not expected to testify before a committee, and their nominations were sent straight to the floor, according to the Senate Historical Office.

As I and others have said above, the whole thing is kabuki, political theatre, a game and an opportunity for grandstanding and sermonizing. It yields very little light for so much heat.

RESPONSE TO GEORGE GREGG: The only thing shrill and pathetic with respect to Chappaquiddick were the final screams of Mary Jo before her lungs began filling up with icy cold water.

George Gregg writes:

That big, bad, mean, evil Teddy Kennedy ogre, beating up on poor, nice Justice nominees and making their women cry!

George, you need to brush up on your FreepSpeak. The operative cliché is "crushing the judicial nominees, seeing them driven before him, and hearing the lamentations of their women."

During the year I belonged to them, they only met twice, and the speaker for one of those meetings never showed up. All I got from it was free pizza. Now, while that group isn't likely to be one that I will someday be tarred with, even if it were likely for me to be in such a position, my membership with that group wasn't important to me. At the time, I joined because I thought it would be good for my resume, but over time, it has ceased to be as important as my activities after leaving college.

This is a good illustration of the point being made. Upon reviewing an old resume, you have remembered the salient details of your membership - you only met twice, the speaker didn't show up once, you joined to polish your resume, but it wasn't important. The point is not whether Alito could recall these sorts of details upon being questioned, out of the blue. The question is, what does he recall, after having been given a month to research and contemplate his membership.

He says he doesn't remember why he joined, but it might have had to do with the ROTC on campus. However, the ROTC issue was not a live one at the time of his membership, and this is information that he presumably came across over the past month or so. The presumptive answer, and a currently embarrassing one, is that he joined to polish his conservative credentials, but was not an active member. Having accomplished resume-polishing, he now wishes to jettison the issues that were used to polish the resume, because they are currently embarrassing. Because the transparency of judicial reasoning is important (i.e. "Why did you decide as you did?"), it is especially important to insistent upon honest and innocuous, if embarrassing, answers.

SDOH, you must not have been paying attention to the hearings. The presence of ROTC on campus was not a live issue at the time, but he listed three or four other issues related to ROTC that were. One was course credit for ROTC courses, which ROTC required and Princeton was denying. Another was recognition of ROTC faculty as faculty at Princeton. I don't remember them offhand, but there were a number of issues he said he cared about greatly that were related to ROTC and live at the time.

Sorry, link to Washington Post transcript.

I dunno, but this hardly seems like a shining moment for Biden, Kennedy, or Schumer. Heck, even Katie Couric, no Republican apologist she, thought the Dems made Mrs. Alito cry.

I heard Dershowitz interviewed on CNN, saying Alito was the wrong judge for America because his views were so extreme. What I find troubling is that Alito's views are pretty tame on the right, but the left characterizes them as impermissible and beyond the pale.

Since when were these issues no longer ones about which reasonable people could differ?

Because the comments in the new post aren't activated, I'll put mine here.

I don't think that non-active CAP membership should be a a deal-breaker. At the time he joined, it was a newly-created organization, without any history. And it is quite possible to pay dues to an old college association without having any idea what they are presently like.

If anything is troubling, it is that (a) He put it on an application for a prestigious job after 15 years of CAP history (a job interview in which an applicant presumably would have enough knowledge to engage in an intelligent conversation regarding the organization's publically stated positions); and that (b) he doesn't appear to be forthcoming in saying why he would do so.

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.

Todd has posed a question of relevancy. What CAP wrote has marginal relevance with respect to Alito's participation in CAP. If this is the purpose of the questioning, then Todd is correct: First ask Alito if he read the magazine, and then pull out the quotes (if necessary) to refresh his memory.

But the relevance of these questions did not go to (a) Why Alito joined; nor (b) The extent to which Alito was an active member (which subscription history would go to); but rather (c) - Why, after 15 years of such public statements, Alito would be put CAP on an application for a highly prestigious job.