Purpose of the CAP Inquiry (Take 2):

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.

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, not to resolve issues of credibility or to ascertain his current views on such matters.