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Senator Kennedy Blows His CAP:

I thought the Kennedy-Alito exchange on CAP sounded familiar:

Senator MCCARTHY. Not exactly, Mr. Chairman, but in view of Mr. Welch's request that the information be given once we know of anyone who might be performing any work for the Communist Party, I think we should tell him that he has in his law firm a young man named Fisher whom he recommended, incidentally, to do work on this committee, who has been for a number of years a member of an organization which was named, oh, years and years ago, as the legal bulwark of the Communist Party, an organization which always swings to the defense of anyone who dares to expose Communists. I certainly assume that Mr. Welch did not know of this young man at the time he recommended him as the assistant counsel for this committee, but he has such terror and such a great desire to know where anyone is located who may be serving the Communist cause, Mr. Welch, that I thought we should just call to your attention the fact that your Mr. Fisher, who is still in your law firm today, whom you asked to have down here looking over the secret and classified material, is a member of an organization, not named by me but named by various committees, named by the Attorney General, as I recall, and I think I quote this verbatim, as "the legal bulwark of the Communist Party." He belonged to that for a sizable number of years, according to his own admission, and he belonged to it long after it had been exposed as the legal arm of the Communist Party.

Knowing that, Mr. Welch, I just felt that I had a duty to respond to your urgent request that before sundown, when we know of anyone serving the Communist cause, we let the agency know. We are now letting you know that your man did belong to this organization for, either 3 or 4 years, belonged to it long after he was out of law school.

I don't think you can find anyplace, anywhere, an organization which has done more to defend Communists—I am again quoting the report—to defend Communists, to defend espionage agents, and to aid the Communist cause, than the man whom you originally wanted down here at your right hand instead of Mr. St. Clair.

***

Mr. WELCH. Senator McCarthy, I did not know—Senator, sometimes you say "May I have your attention?"

Senator MCCARTHY. I am listening to you. I can listen with one ear.

Mr. WELCH. This time I want you to listen with both.

Senator MCCARTHY. Yes.

Mr. WELCH. Senator McCarthy, I think until this moment—

Senator MCCARTHY. Jim, will you get the news story to the effect that this man belonged to this Communist-front organization? Will you get the citations showing that this was the legal arm of the Communist Party, and the length of time that he belonged, and the fact that he was recommended by Mr. Welch? I think that should be in the record.

Mr. WELCH. You won't need anything in the record when I have finished telling you this.

Until this moment, Senator, I think I never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us.

When I decided to work for this committee I asked Jim St. Clair, who sits on my right, to be my first assistant. I said to Jim, "Pick somebody in the firm who works under you that you would like." He chose Fred Fisher and they came down on an afternoon plane. That night, when he had taken a little stab at trying to see what the case was about, Fred Fisher and Jim St. Clair and I went to dinner together. I then said to these two young men, "Boys, I don't know anything about you except I have always liked you, but if there is anything funny in the life of either one of you that would hurt anybody in this case you speak up quick."

Fred Fisher said, "Mr. Welch, when I was in law school and for a period of months after, I belonged to the Lawyers Guild," as you have suggested, Senator. He went on to say, "I am secretary of the Young Republicans League in Newton with the son of Massachusetts' Governor, and I have the respect and admiration of the 25 lawyers or so in Hale & Dorr."

I said, "Fred, I just don't think I am going to ask you to work on the case. If I do, one of these days that will come out and go over national television and it will just hurt like the dickens."

So, Senator, I asked him to go back to Boston.

Little did I dream you could be so reckless and cruel as to do an injury to that lad. It is true he is still with Hale & Dorr. It is true that he will continue to be with Hale & Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty, I will do so. I like to think I am a gentleman, but your forgiveness will have to come from someone other than me.

***

Mr. WELCH. I meant to do you no personal injury, and if I did, beg your pardon.

Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency sir, at long last? Have you left no sense of decency?

Senator MCCARTHY. I know this hurts you, Mr. Welch. But I may say, Mr. Chairman, on a point of personal privilege, and I would like to finish it—

Mr. WELCH. Senator, I think it hurts you, too, sir.

Update:

I inadvertently cut-off the initial quote and have updated the post to add the final exchange to the blockquote.

Steve:
I am a long-time reader and commenter here, but after this despicable post, I won't be visiting the VC any longer.
1.11.2006 4:31pm
guest:
Don't let the door hit you.
1.11.2006 4:33pm
Justin (mail):
Are you saying that Mister Fisher was an admitted member of the Communist Party and was nominated for a position with the United States government, of lifetime tenure, that required the advice and consent of the United States Senate?

If not, then what's your point? Would membership in the Communist party be okay for a Supreme Court nominee, not requiring even the most minor discussion amongst Senators?

I don't know if I find that the post is "despicable" as Steve does, but I do believe it completely misses the point.
1.11.2006 4:34pm
Bob Bobstein (mail):
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.
1.11.2006 4:39pm
Bruce:
I agree with Justin. The analogy is a little off. Welch was outraged (or at least portrayed himself as outraged -- he was a trial lawyer after all) because McCarthy had introduced a completely irrelevant smear on an assistant of his as a way of derailing Welch's questioning -- which is really two steps removed from the issue, since Welch was the lawyer and not the party appearing before the Committee. To be parallel, Kennedy would have had to have attacked a junior associate working for Alito's counsel at the hearing.

If your point is that CAP is like the Lawyers Guild, I'm not sure the Welch speech really makes that clear. It sort of depends on the merits of the two organizations.
1.11.2006 4:41pm
Joe Malchow (mail) (www):
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
1.11.2006 4:41pm
WB:
Alito should respond to every one of Kennedy's questions with "at least I haven't murdered anyone."
1.11.2006 4:43pm
elliottg (mail):
Despicable post.
1.11.2006 4:47pm
frankcross (mail):
Why is it despicable? I think the analogy is strained but I don't see despicable.
1.11.2006 4:50pm
Justin (mail):
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.
1.11.2006 4:53pm
Choosing Sides 2:
It's not despicable. But it's embarassingly weak.
1.11.2006 4:53pm
A.S.:
"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?
1.11.2006 4:54pm
Cheburashka (mail):
What ever happened to Fred Fisher, by the way? I've always wondered.
1.11.2006 4:55pm
Hoosier:
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.
1.11.2006 4:57pm
Dave:
So you "fear [Alito] shall always bear a scar needlessly inflicted by" Kennedy, and that Kennedy is an example of unforgivably reckless cruelty. I see.

I think that the most charitable description of this post is "silly." An equally accurate one might be "Orwellian."

Dave
1.11.2006 4:57pm
elliottg (mail):
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.
1.11.2006 4:58pm
Hoosier:
He's "obviously" lying under oath?

Perhaps this is a new usage of the word "obvious."
1.11.2006 5:00pm
jc:
i'll add my 2 cents that this is the worst post i've seen on this blog.
1.11.2006 5:05pm
J..:
What Frank said; the analogy is pretty strained.

I did get a kick of this line;
25 lawyers or so in Hale &Dorr.”

I think Wilmer Hale is now about 1000 lawyers strong.
1.11.2006 5:06pm
boonelsj (mail):
Agreed. Not despicable, merely lame. Glad you teach law and not humor.
1.11.2006 5:08pm
Cheburashka (mail):
Don't any of you care about poor Fred Fisher?
1.11.2006 5:08pm
Justin (mail):
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.
1.11.2006 5:08pm
Houston Lawyer:
You keep using that word. I don't think it means what you think it means.
1.11.2006 5:09pm
Hoosier:
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.
1.11.2006 5:10pm
SDOH:
The word that Hoosier and AS are looking for is "proven."

Although it has not been "proven" that Alito is lying, it is "obvious" that he is doing so.
1.11.2006 5:10pm
Anon1ms (mail):
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.
1.11.2006 5:11pm
Cheburashka (mail):
I think the Conspiracy has drifted a bit with the addition of new commentators, but not toward partisanship or rants, and this post was entirely appropriate.

Kennedy's demand to subpoena the records of an organization the nominee may have briefly been a member of more than 20 years ago - and has disavowed - is beyond the absurd.
1.11.2006 5:14pm
Richard Riley (mail):
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.
1.11.2006 5:14pm
Hoosier:
"Orwellian"?

Shouldn't . . . um . . . power be behind any action that we describe as "Orwellian"?

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.
1.11.2006 5:14pm
Cheburashka (mail):
Thanks Richard.
1.11.2006 5:14pm
Hoosier:
SDOH--

Proven is an adjective. I think the word you want is "proved," which is a participle, as you constructed your example.

Oh, and by the way, you may want to look up "obvious." I don't think you have a handle on that one either.

Love,

Hoosier
1.11.2006 5:16pm
Hoosier:
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.
1.11.2006 5:19pm
elliottg (mail):
Nope, I'm convinced that someone as smart as Alito can remember those things when reminded of them and provided with the appropriate cues. He's embarassed and "can't remember". At some point he'll say "I don't know", and if that fails and the questioning continues, he'll try "I'm not sure".
1.11.2006 5:20pm
Hoosier:
And your evidence is . . .


(Maybe I just isn't that bright. After all, I is a Hoosier.)
1.11.2006 5:22pm
SDOH:
Hoosier:
As used in my sentence, the grammer is correct.
And I note that you ask for evidence - that is, proof.
1.11.2006 5:28pm
aek (mail):
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.
1.11.2006 5:32pm
Bobbie:
Another vote for pathetic post of the year.

And we won't know the extent of Alito's invovlment until we get those documents. He has quite the selective memory.
1.11.2006 5:34pm
A.S.:
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.
1.11.2006 5:37pm
TJ (mail):
A.S.,

Needless to say, that goes without saying...
1.11.2006 5:40pm
George Gregg (mail):
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...
1.11.2006 5:41pm
A.S.:
Interesting that Eugene posted today his article on the use of the term "McCarthyism" ("Labeling allegations as “McCarthyism” is likely to distract listeners more than it helps them assess which allegations are sound and which aren’t.") and... Todd Zywicki happens to make the very analogy shortly thereafter.

Might it be that Todd is somehow subtly testing Eugene's thesis?

That being said - Todd is exactly right!
1.11.2006 5:42pm
Mark Buehner (mail) (www):
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?'
1.11.2006 5:43pm
AppSocREs (mail):
I think the point can be made without any reference to McCarthy that Edward M. Kennedy, Jr. is a cheat, a coward, responsible for one young woman's death, implicated in the probable rape of at least one other, and a drunk. He has bullied people all his life and his bullying behavior is front and center now. Raised with enormous priveleges and advantages he has used these to shield himself from the consequences of his many misbehaviors. He has made himself a despicable human being. By comparison Alito is a gentleman and a scholar. That Kennedy dares to criticize and bully this man in public is a truly awe-inspiring example of chutzpah.

I can empathize with a young man of Alito's background joining CAP. I attended elite universities from the mid '60s to the late 1980s. I am from a working class background and can still remember how provoked I could be by the left-wing condescension of spoiled rich kids who thought they had any grasp at all of "workers" and their aspirations. If something like CAP had existed at my schools I would have joined just to spit in the eyes of these Ted Kennedy lites.
1.11.2006 5:44pm
WHOI Jacket:
Remember, only Republicans can be dragged through this kind of process. IF this were a democrat appointment, can you just picture the outrage, OUTRAGE?
1.11.2006 5:45pm
George Gregg (mail):
After all, one doesn't have to EQUATE the Communist party with CAP, or Alito with Fisher, or Specter with Welch, or Kennedy with McCarthy, to simply notice a parallel in the discourses, for goodness' sake.

I certainly don't.
1.11.2006 5:46pm
Justin (mail):
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.
1.11.2006 5:51pm
Bruce:
By the way, for anyone interested in the original context of the quote Todd excerpted, I highly recommend "Point of Order" -- newly released on DVD. Any litigator will watch Welch's performance in awe and admiration.
1.11.2006 5:51pm
David Maquera (mail) (www):
Dear God,

Please let Chappaquiddick Kennedy and his fellow Senate Democrats be dumb enough to filibuster Judge Alito.
1.11.2006 5:55pm
George Gregg (mail):
Thanks for the DVD tip, Bruce! I have the mp3 of the exchange in my iTunes and every time it comes up in the shuffle I have to stop and listen with, as you say, awe and admiration. Truly a wonderful moment in American history.
1.11.2006 5:59pm
George Gregg (mail):
Dear God,

Please help all the Kennedy-haters realize how shrill and pathetic they sound when they invoke Chappaquiddick.
1.11.2006 6:03pm
Rhadamanthus1982 (mail) (www):
Senator Kennedy is a seasoned Senator who is very aware of the opportunities for bullying that come as a perk in the position. The fact that he clearly doesn;t want the nomination to go through will make Republicans more not less determined.

With all due respect to Mr. Fisher, I have no idea what happened to him but it sounds like he had the support of his boss and as such the words of JM were simply that; words. Alito is a big boy and if he's off crying now then he doesn;t deserve to be on the SC. It's words; I would normally say be the bigger man but in this case that was a given as Kennedy gave him no time to respond. Yeah it'll make the headlines but it won;t affect the nomination.

To think some people still are unsure as to why politicians are not held in high regard. (oh and 'm a big fan of the Kennedy's in general and a member of teh Democratic party: just in case the Dems were about to launch an assault on me!!)
1.11.2006 6:05pm
JRfromFLA:
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.
1.11.2006 6:06pm
Patrick (mail):
Dear me there are some sensitive and eidetic souls on this thread. Just 5 or 6 or 7 years ago, I honestly can't remember exactly except that I am pretty sure it was 6, I joined Greenpeace. I don't clearly recall why, I think the determinative factor was the pretty girl asking! I never not for one instant agreed with all their policies. Shortly afterwards they renewed their active opposition to nuclear power and I quit.

I actually have a pretty good memory, by most standards. But will I remember that 15 years more down the track? Will it be fair for a conservative or libertarian group to blackball me because I was a memebr of so silly an organisation as greenpeace, whose stated aims include lowering the standard of living of billions of people and spreading misery, disease and sufering?

There is nothing despicable in the analogy, and if you really think there is, remember, as some commentators here have, who is being compared.
1.11.2006 6:11pm
Houston Lawyer:
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.
1.11.2006 6:17pm
David Matthews (mail):
"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."

I'm afraid I have to agree about this. The other option is that he lied on the job application, to pad his cred's a bit, and didn't know much about the organization, and doesn't remember having added that particular bit of padding. It would certainly be easier to forget a bit of a fudge on an application, than it would be to remember your membership for long enough to put it on the application, and then forget your membership over the next twenty years. I'd personally really like to see Alito on the court, but I'm bothered by this "I can't recall" defense. It bothered me when the supremely intelligent Hillary Clinton used it in her testimony before the OIC, and it bothers me now.

There is an irony, though, in listening to Kennedy make these demands on Alito's memory, and knowing that Kennedy most likely can't remember much at all of the past thirty years (but he'd fail utterly the "otherwise mentally competent" qualification in your post.)
1.11.2006 6:20pm
Frank Drackmann (mail):
I bet Joe McCarthy would have saved Mary Jo Kopechne.
1.11.2006 6:21pm
George Gregg (mail):
Personally, I think the whole CAP line of questioning is a non-starter, anyway.

The guy was applying for a position with a very conservative Administration. You do that by quickly identifying and highlighting whatever experience you might have that boosts your conservative cred. CAP was well known among conservative circles as being a conservative-friendly group. I don't think Alito necessarily had any buy-in on their bigotry - he was just emphasizing what he could to put himself in the best light for his application.

In 1985, I was a member of a couple of organizations, too. Orgs that I'm pretty sure I participated in on a weekly or monthly basis. But it would be extremely difficult for me to recall exactly why I joined them (I could take a stab at it, but couldn't be sure). And the only memories I have of my participation in those organizations are a few vague recollections.

So I find Alito's comments on CAP quite credible and wish more time were spent on elucidating his views on executive powers under Article II, for example.
1.11.2006 6:26pm
Bobbie:
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.
1.11.2006 6:29pm
Anderson (mail) (www):
Anyone who sees Teddy bloviating and thinks "McCarthy!" has a persecution complex a mile wide.

McCarthy and his supporters ruined many people's lives by their deeds in the Congress. How Kennedy's questioning remotely compares is beyond me.

Another pathetic examples of conservatives, who currently dominate all 3 branches of the federal government, whimpering like victims.

Combined with TZ's diehard defense of the bankruptcy bill, I am thinking I should examine that "exclude the poster of your choice" feature on the VC. I can find all the kneejerking I care to in lots of other places.
1.11.2006 6:34pm
jallgor (mail):
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.
1.11.2006 6:35pm
GMUSL 2L (mail):
From OpinionJournal.com's Best of the Web, 01/09/2006

Stranger Than Fiction
What do the senior senator from Massachusetts and quadruple murderer Stanley "Tookie" Williams have in common? The Associated Press provides one answer:

Meet the latest children's author, Sen. Ted Kennedy, and his Portuguese Water Dog, Splash, his co-protagonist in "My Senator and Me: A Dogs-Eye View of Washington, D.C."

Scholastic Inc. will release the book in May.

So Ted Kennedy has a dog named Splash? How witty.

Mary Jo Kopechne's children could not be reached for comment.
1.11.2006 6:37pm
CTW (mail):
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.
1.11.2006 6:38pm
Roscoe (mail) (www):
Houston Lawyer - Princess Bride, right? Ha!

Everyone else - Anyone who thinks that someone would "obviously" remember something that happened 20 years ago is obviously not a practicing trial lawyer.

You prep a witness for deposition, and put a letter in front of her that she had written a couple of years ago. It is a detailed, well written letter to which she had obviously given a great deal of thought. You ask her about it, and get a response like "Well, it has my signature, so I guess I wrote it, but I really don't remember it."

This happens all the time, and used to drive me crazy (how can she not remember?!!) until my own deposition was taken one day (in a fee dispute between the lawyer on the other side in a case and his client). I found myself giving the same dumb-sounding answer with respect to letters I had written.
1.11.2006 6:39pm
George Gregg (mail):
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.
1.11.2006 6:43pm
Jutblogger (www):
Two things about this post for me:

a) it's a blog, not every post is supreme court brief winning argument change the world and law forever quality.

b) i think the analogy is: he's asking for documents about something that is clearly related to his character, and, by the way, not even really asking the man questions, just badgering him about the association (in both senses of the word). it reminds one of mccarthy(ism) because it has nothing to do with his qualifications, is a strain on the man's memory, and is a stretch of the word "probative". i agree with anyone here who has had any case and heard someone say: yes i did that, i really don't recall much about that.

i have clients that don't remember the date of their own wife or mother's death, that happened a couple of years ago, are they practicing tautology? i think not.
1.11.2006 6:46pm
JohnAnnArbor:
"Are you now or have you ever been a member of the Federalist Society?"
1.11.2006 6:46pm
Denver (mail):
The Demos should look at all of Rusher's papers.

The Republicans should have subpeoned all of the records of the vile anti-American ACLU when Ginsberg was nominated.
1.11.2006 6:48pm
Roger Schlafly (www):
So Welch badgering McCarthy into naming Fisher. The NY Times had already written about the Fisher matter anyway. I don't see the connection.
1.11.2006 6:49pm
jahoulih:
Well, ex-Klansman Hugo Black went on to a distinguished Supreme Court career. Perhaps we can hope for a similar redemption from Judge Alito.
1.11.2006 6:49pm
Bruce Hayden (mail) (www):
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.
1.11.2006 6:56pm
Newbie (mail):
Justin, show me that "approved " list, or a reference to it. Otherwise you are "obviosuly" lying. Ginsberg was about as far left as they come (ACLU Abortion for, ahem, minor girls without parental consent), the repubs tolerated her becuase they respected the process. Hell the repubs even asked ginsberg to recuse herself on abortion cases becasue of her politicing for abortion rights, usually a big no-no for any judge(guess only repub judges count now).
See here

Bobbie, Kennedy is granstanding, the papers he wants are in the Library of Congress, Wliima Rusher released them for review already. In fact the NYSlimes has reviewed the papers and found nothing implicating Alito.
See here

Amzing what a little research can do. Why suponea what is an open record? /boggle
1.11.2006 6:57pm
Wince and Nod (mail) (www):
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
1.11.2006 6:57pm
ROA:
The NY Times looked at Rusher's papers last year and didn't find anything. Once Rusher found out who wanted them he immediately made them available to the committee. Doubt if they will find anything either.
1.11.2006 7:02pm
tothebottom (mail):
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!
1.11.2006 7:08pm
BD57 (mail):
"Despicable" appears to be the buzzword amongst those unwilling to engage the analogy.

Kennedy's father was withdrawn as ambassador to Germany - he was considered too friendly to the regime of whats-iz-name. Does that make Teddy a Nazi?

Based on some of the comments, it would - if Teddy was a Republican.

Kennedy's brothers wiretapped Martin Luther King - does that make them racists and anti-civil rights ... and Teddy the same, by implication?

Based on some of the comments, it would - if Teddy was a Republican.

In the debate on the War on Terror, is Teddy answerable for every moonbat statement made by Cindy Sheehan, Michael Moore, Harry Belafonte, et al., ad nauseum?

By the standards being championed by Kennedy - and the commenters - yes.

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

For those who consider the post "despicable" - you ought not read any blogs that don't regurgitate everything you agree with, as you're obviously not capable of handling points of view with which you disagree.
1.11.2006 7:08pm
SDOH:
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.
1.11.2006 7:09pm
PoohPoohBear:
If that's the best Teddy Kennedy can do sober, he should go back to drinking if he really wants to drown someone in the details.
1.11.2006 7:20pm
George Gregg (mail):
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.
1.11.2006 7:27pm
Aaron:
SDOH beat me to it.

It is credible that, say, a month and a half ago, Alito could have said, "CAP? Me? Really?"

It is straining credibility to think that with all of the publicity, coaching, oppo research and prep, that Alito is still saying, "CAP? Me? Really"

And by "straining credibility", I mean "it's OBVIOUS that this is nothing more than a dodge to the subject."
1.11.2006 7:27pm
unhyphenatedconservative (mail):
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.
1.11.2006 7:28pm
Michael Kennedy (mail) (www):
Alito has already testified that the application asked for political groups and, since he had few to name, he chose that one. He joined to protest the dropping of ROTC, of which he was a member and, because of the administration's cowardice, he was unable to continue. When it came back on campus, as the Alito opponents keep reminding us, he probably could not complete the course because of time lost but that return may have convinced him it was an effective group and he stayed a member for a while.

Pretty weak reed to hang all this anger on. The Rusher material has been released and the issue is a loser. I am very impressed by Alito although looking smarter than Teddy and Joe Biden is no accomplishment.
1.11.2006 7:31pm
John Lederer (mail):
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?
1.11.2006 7:34pm
Sydney Carton (www):
Great post. I thought of the exact same thing. The reason why people think this blog post is "despicable" is because they don't want to admit the truth.
1.11.2006 7:42pm
George Gregg (mail):
"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.
1.11.2006 7:46pm
Michael Kennedy (mail) (www):
The fuss is about the position of CAP on affirmative action. The question is whether Senator Kennedy thinks it is racist to oppose lowering standards. The AP article here, makes clear (fourth paragraph) that lowering standards is the issue. Does the senator who was expelled from a law school for hiring another student to take an exam believe that women and minorities require lower standards to gain admission ?
1.11.2006 7:50pm
Michael B (mail):
"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.
1.11.2006 7:52pm
btorrez (mail):
How many times did Hillary Clinton invoke the "I can't remember" defense during her rein in the White House? I would say, despite my very negative views of her, that she is quite bright and chances are knew very well what she was doing. I am inclined to believe that she was lying at that time;however, as others have pointed out, our memory can play tricks on us. It will be interesting to see if that comes up during her run for the White House and what the response is by the people now bashing Alito.
1.11.2006 7:54pm
Dave:
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
1.11.2006 8:05pm
Mark Buehner (mail):
You guys put Alito in a precarious position. If he truly cant remember anything about the organization no matter the head scratching he does, what would you have him do? Lie, apparently. Thats the 'obvious' recourse. He should be lying unless he has something to hide? Is that the lesson here? Madness.
1.11.2006 8:22pm
Dustin (mail):
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.
1.11.2006 8:35pm
RKV (mail):
Kudos to Mark Buehner and JohnAnnArbor for getting the point of Zywicki's post. Many of the rest of you are running away from the plain facts - Kennedy's weak and misguided attempt at character assassination does bear more than a passing resemblance to McCarthy's tactics. Mind you, not that McCarthy was wrong to say that the Commies had infiltrated the US government, because this fact has been proven to be true.
1.11.2006 8:46pm
SDOH:
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.)
1.11.2006 8:47pm
Apodaca:
Dustin says:
You are not a serious intellectual if you cannot respect points that aren't simplistic
For the many reasons cited above, Todd's post is simplistic, facile, and tendentious. Under those circumstances, must we respect it?
1.11.2006 8:51pm
Kipli:
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.
1.11.2006 8:53pm
SDOH:
Addendum to previous post: But I also think that untruths should be rejected by the Senate. An "obvious" example: Justice Thomas claiming that he never discussed Roe v. Wade. Currently, a nominee has a (large) incentive to lie about anything that is embarrassing. This will get worse before it gets better.
1.11.2006 8:55pm
inmypajamas2 (mail):
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.
1.11.2006 9:02pm
Dave:
Dustin says: "You are not a serious intellectual if you cannot respect points that aren't simplistic and in accord with what you already thought."

His "point" consisted of ten words, two links, and a quote. If we're interpreting it correctly, it is fairly simplistic.

Dustin says "To not see this is to be extremist."

What happened to respecting other people's points?

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

Republicans are lucky that the Democrats are incompetent. If anyone's "evil," it's the people that oppose prohibitions against, and justify, torture; the people that keep taxes on the poor high in order to justify tax cuts for the rich; the people that spy on the Quakers and on their political opponents; that oppose vaccines for HPV because it's more important to keep condoms ineffective than to prevent cancer; and so on and so on. I hope you'll forgive me if I don't see Kennedy in the same negative light as Frist.

Dave
1.11.2006 9:04pm
George Gregg (mail):
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?
1.11.2006 9:07pm
Dave:
By the way, Kennedy is a jerk. I don't know anyone that likes him, though I know that such people must exist, somewhere. Still, calling him "evil" for what he just did to Alito like Dustin does is absurd.

Dave
1.11.2006 9:09pm
Michael B (mail):
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.
1.11.2006 9:16pm
George Gregg (mail):
And the Republicans aren't "doing their job" because they are showing him respect?

No, but nice try.

They're not doing their job because they're (for the most part) making no attempt whatsoever to really elucidate Alito's views. Most of them are instead doing their best to drown him in praise while condemning the Democrat senators for even asking tough, probing questions, and conflating their doing so with invidious attempts to destroy the man.

Yes, some Dems are going over the line in their brusqueness, likely because of their partisan bias. But Republicans are being no less partisan when they're so busy trying to wrap a toga around Alito set a laurel on his head that they can't find time to actually probe the issues which would lead to their being able to diligently exercise their "advise and consent" role.

I mean, if you want to talk about "testifying" rather than "interviewing", some of the Republicans simply take the cake. I heard Cornyn (I believe it was) give a 20-minute long sermon against abortion in his time block today. Was that "interviewing" or "testifying"? Was that being respectful to Alito or was it simply grandstanding? The idea that the Republicans are merely being respectful, while the Dems are ogrish, disrespectful, grandstanding, evil, etc. is just outrageous. Yet I've been hearing that voiced all day.

Feingold's questions were extremely polite and very germane. Schumer's questions were also polite, if pointed, and very germane. Personally, I'd like a few more tough, probing questions like theirs from the Republicans. You can be respectful without being a push-over.

All part of that "taking your responsibility seriously" thing, I guess. Means a lot to me, regardless of political party.
1.11.2006 9:23pm
Duncan Frissell (mail):

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.
1.11.2006 9:32pm
Dustin (mail):
To those complaining about my use of simplistic, please review the logical definition of 'and'.

Since obviously it's okay to believe things that are simplistic on its own.

Since few here are understanding the similarity of Zywicki's analogy to reality, I think my comment stands.

As far as the 'evil' in republicans, I never said there wasn't any, I said it was the GOP's luck that they face democrats who are also in some instances obviously as villianious as Kennedy.

Frankly, again, Kennedy is being a jerk. That I can see this doesn't mean that I am closed minded, since I am a Democrat myself.
1.11.2006 9:37pm
Charlie (Colorado) (mail):

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?
1.11.2006 9:38pm
George Gregg (mail):
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.

But it was not a withering attack from Democrats which unsettled Mrs. Alito. Not at all.

I am so sick and tired of everyone just lying about every-damned-thing."

Thank you, John.
1.11.2006 9:45pm
Dustin (mail):
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.
1.11.2006 9:57pm
Dave:
Dustin asks me to "please review the logical definition of 'and.'"

I ask him to please review the definitions of "unnecessarily" and "condescending."

Dave
1.11.2006 10:01pm
Clara (www):
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.
1.11.2006 10:03pm
Stephen M (Ethesis) (www):
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."?


Well, I'm fifty.

Every so often I'll go through my resume and cut out things I don't remember enough about to be able to discuss.

Though my poor brother. Some day he will have to explain his Mother Jones subscription that he got when he thought he was getting the Whole Earth Catalog magazine ...

You prep a witness for deposition, and put a letter in front of her that she had written a couple of years ago. It is a detailed, well written letter to which she had obviously given a great deal of thought. You ask her about it, and get a response like "Well, it has my signature, so I guess I wrote it, but I really don't remember it."

This happens all the time,


I'd have to disagree. I don't have it happen more than six or seven times a year. We probably have a different class of witness.

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.

Wouldn't it be nice if there was actual investigation and real questioning going on instead of sermons and "have you quit beating your wife" or "don't you agree, that proves you are a saint?" sorts of questions?

Not that they aren't interesting, and not that they don't show something, but ... I'm glad this only goes on for as long as it does. The current method makes me wish the nominee could just skip to a short session of actual questions at the end ;)

Or perhaps be given three hours at the end to answer all the rhetorical questions and make a statement like everyone else?
1.11.2006 10:05pm
Scotty:
Terrible post Zywicki.
1.11.2006 10:07pm
Duncan Frissell (mail):

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.

Advocating single-sex schools can hardly be sexist unless you claim that the 55 female-only and the 67 male-only colleges you can find by searching this page are sexist. Then there are the thousands of single sex primary and secondary schools...

Whites advocating that admissions should be primarily on merit can hardly be racist since in practice such a policy causes an overrepresentation of certain non-white students (see UC Berkeley) and any effect of such a policy on Hispanics doesn't effect another race since according to the US Census, Hispanics are >90% white by self-identification.

If you think such a policy effects black admissions (in practice non-African, non-Carribean black admissions) it can only do so because you believe blacks to be intellectually inferior -- not a view I share.
1.11.2006 10:10pm
Bleepless (mail):
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.
1.11.2006 10:13pm
George Gregg (mail):
Dustin, please. Your comment completely ignores the reality of what happened.

Graham went on a long, tear-jerking monologue about how wonderful Alito was. He then overstated the Dems' comments for dramatic effect. He was so maudlin that he brought himself to the point of tears. At this point, Mrs. Alito began to cry, too.

Yes, it's been a very stressful day. Yes, her husband has been raked over the coals by some Dem senators probing things. And she's probably tired and frustrated and irritated and all kinds of things. Maybe her chair is uncomfortable place to sit for hours. Maybe she doesn't like anyone questioning her husband on even legitimate issues. I grant that she even may be REALLY upset with the Dems for what she might feel are "attacks" on her beloved.

But she wasn't crying when Graham started to speak. And then Graham goes into his speech, misrepresents the nature of what the Dems have been saying, making it sound much more condemnatory than it is (Dems never called Alito a bigot) and then, nobly, defends Alito's honor from these straw men he's just himself erected. With a quavering voice and a tear in his eye, Graham waxes eloquent about what a wonderful man Alito is and how he knows Alito is not a bigot because of how he raises his children. And then, when Graham brings himself to the verge of tears, Mrs Alito tears up too and has to leave the room.

This is called emotional manipulation. Politicians are pretty good at it, and Graham just put in a magnificent performance. You'd have to be blindly partisan to put this at the feet of the Democrat senators. Doing so, as some are doing, is a blatant lie. Calling it what it is, is telling the truth.

You prefer to see that as "vicious demagogoury"[sic], "patently ridiculous" and "intellectual dishonesty". I understand where you're coming from, but you're wrong, and your position on this tells more about your own demagoguery than Cole's or mine. Both of us, I hasten to say, are conservatives, but we at least recognize a lie when we see it and are willing to exercise the integrity to speak out about it, even when it does not reflect well on our own political party.
1.11.2006 10:39pm
Apodaca:
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?
1.11.2006 10:42pm
Christopher M. (mail):
I don't think that very many people think that Alito is a closet racist, but that's not the point. If he maintained his membership in CAP despite disagreeing with the vehement views on race, gender, and homosexuality of some of its most vocal members, and if he knew about those views, then that says something: that he was willing to stay in an organization because of its general affiliation with a certain conservative movement and temperament, even when he disagreed with many of its most offensive beliefs.

Guilt by association? Yes, of course. Guilt by voluntary, knowing association would be a terrible basis for a criminal conviction, but it's a perfectly good basis on which to evaluate someone's character. Are those who are crying "guilt by association" really saying that the inquiry would be inappropriate if a S. Ct. nominee had been a member of, say, NAMBLA? The Klan? No, of course not, even if you firmly believed that such membership was based on some issue other than white supremacy or sex with little boys.

That said, I can't remember what I had for dinner last night, so I don't disbelieve Alito about CAP. But it's a perfectly legitimate line of inquiry.
1.11.2006 10:55pm
jahoulih:
Shorter Judge Alito: "I can't recall specifically why I subscribed to "Playboy," but I'm fairly sure it was for the articles."
1.11.2006 10:58pm
Anderson (mail) (www):
CTW:
it seems incredible that at that age (35-ish) he would knowingly have created this potential vulnerability.
Good point, CTW. The thing is, being a country-club sexist/racist DIDN'T SEEM LIKE A DISADVANTAGE in the circles Alito was aiming at. "Everybody" was like that ... everybody male &white.

More generally, the suckers who think that, after months of vetting, it's "understandable" that Alito "wouldn't remember" CAP are just astonishing. No wonder Bush was re-elected.
1.11.2006 11:00pm
George Gregg (mail):
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...
1.11.2006 11:04pm
Anon1ms (mail):
Some of the people commenting here should schedule an appointment with a neurolgist.

I'm not nearly as smart as Alito, but I have no problem recalling what I was involved in 20 or 25 years ago. I may not remember every name, but if prompted I certainly could recall the relevant aspects of what I was doing at the time.

No, I don't believe that Alito can't remember anything about his membership in CAP. What I find even more puzzling, is why he finds it necessary to "forget."
1.11.2006 11:11pm
Hoosier:
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.
1.11.2006 11:13pm
mls (mail):
Inmypajamas2 said: "I think the point being made here is the Dems are obsessed with character assassination rather than reviewing Alito's judicial career honestly."

Is it possible that CHARACTER matters, period? I'd like to see a supreme court justice who is HONEST enough to own up to his or her beliefs. Wanting the job so badly that you're willing to dissemble on issues large and small -- whether your murder boards mooted you on NSA spying, for example. He says he doesn't recall! Do you believe that? THAT wasn't 20 years ago.

CAP membership is not the sum total of his "I don't recalls" and his "I didn't really mean its" and his "I was just a young lawyer sucking up to get a job" statements. Yes, we know, the Alito of 1985 would say anything to get the job -- he's pretty much admitted that. Is it such a big surprise that he's willing to say anything to get this job, too? Is it simply shocking that Democrat senators want to catch him at it?

This isn't said to defend Kennedy, who is pretty weak in the character department himself. Hmm, maybe Kennedy is more like Alito than he is like McCarthy . . . .
1.11.2006 11:21pm
SDOH:
My grammar stands corrected.
1.11.2006 11:26pm
KMAJ (mail):
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 ?

So if I were to assert that Kennedy was a supporter of a man who drove off a bridge and caused the drowning of a young woman, Kennedy is guilty of drowning that young women ? Ooops, he was the driver.
1.11.2006 11:40pm
George Gregg (mail):
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?
1.11.2006 11:44pm
KMAJ (mail):
The point being that this CAP argument and questioning is irrelevant. It is clearly an attempt at character assassination through guilt by association, and as the writer of that letter and Alito have no relationship other than membership in CAP, it is a specious association at that. The second part was a tongue in cheek jab at the hypocrisy of Kennedy to even attempt to make such smear tactic moral judgements delving into someone's past.
1.12.2006 12:02am
John Lederer (mail):
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.
1.12.2006 12:02am
George Gregg (mail):
"The point being that this CAP argument and questioning is irrelevant."

Oh. I thought the point was that you made a straw man argument to support your position.

My apologies.
1.12.2006 12:04am
o' connuh j.:
Excellent post.
1.12.2006 12:13am
GMP:
Gosh I hope Alito wasn't a Boy Scout. They are a sexist, homophobic, anti-aethesist and racially insensitive hate group.

Senator Kennedy should be in a prison cell, not the Senate.
1.12.2006 12:13am
W.J.Hopwood (mail):
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.
1.12.2006 12:15am
ChrisO (mail):
Horrible post.
1.12.2006 12:39am
Apodaca:
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?
1.12.2006 12:41am
KMAJ (mail):
John Lederer,

I agree it is a fair point of initial inquiry, once answered, it really has no bearing unless there is some hidden bombshell to be exposed, which according the a NY Times article last November, there isn't. What I object to are the insinuations they seek to infer, that is character assassination by unfounded and unsubstantiated innuendo.
1.12.2006 12:52am
George Gregg (mail):
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).
1.12.2006 1:04am
Anon7:
Why do I think Republicans are neglecting their duty?

They have asked a grand total of -zero- tough questions of Alito before voting on his nomination.

This is the ONLY chance Senators will have to question him. Ever.
1.12.2006 1:18am
Michael Kennedy (mail) (www):
"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.
1.12.2006 1:18am
George Gregg (mail):
"God, how I love people who can see black as white !"

I love how people can be willfully obtuse to what actually happened when it served their purposes.

Check out the video again if you're unsure. Scope out when Mrs. Alito cries. What's going on when it happens? Was it when Teddy K. was grilling her hubby or was it when Lindsey Graham's tugging at the heartstrings, "defending" Alito from the charge of bigotry which had never been made, engaging in a maudlin appeal to emotion by drawing Alito's family into it?

It was Graham, wasn't it? Yes, it was. Will it matter? Nope. Because appeals to emotion, as politicians know all too well, usually trump reason. And this time tomorrow, most people will simply blindly accept the false spin that the big, bad Dem ogres made that poor woman cry.

There are none so blind as those who will not see.
1.12.2006 1:34am
Dave's World (mail) (www):
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.
1.12.2006 1:42am
subpatre (mail):
Apodaca writes attacking:
"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..."-W.J.Hopwood

Let's see: Ad hominem against the questioner? Check.

It's legitimate for the same reason felons' testimony is impeachable.

Assuming the conclusion with a reference to Alito's "caliber"?

'Caliber' is a relative measure.
3. degree of capacity or competence; ability: a mathematician of high caliber.
4. degree of merit or excellence; quality: the high moral caliber of the era.
Note the use of qualifying adjectives. Alito's caliber is higher (note the degree) than Kennedy's. This is not necessarily because Alito is of high caliber, but in the absence of cheating, homicide or other caliber-depreciating acts, far higher than Kennedy's.

Implying bizarrely that someone with moral failings has no ability to identify, or even inquire into, potential moral defects in another? Check.

As refered to above, the courts routinely make that assumption on the best of grounds. Morally defective perons are defective because their moral judgement, a decision-making process, is defective.
1.12.2006 2:32am
Mark Bradbury (mail):
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!
1.12.2006 2:32am
WaltT:
Joseph Welch's most famous line occurs right after the part that Todd posted, and it applies to Teddy in spades.

You've done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?
1.12.2006 2:46am
Mean Dean (www):
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.
1.12.2006 3:18am
CrazyTrain (mail):
CAP was a group dedicated to keeping blacks off campus. Nuff said.

And Todd, your post is a joke, like all your others. You are just a typical little Dartmouth conservative elitist like your butt-buddies at PowerLine.
1.12.2006 3:20am
KMAJ (mail):
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.
1.12.2006 5:39am
Apodaca:
Subpatre writes:
Let's see: Ad hominem against the questioner? Check.
It's legitimate for the same reason felons' testimony is impeachable.
Thanks for ringing in, Jim, but it's a false analogy. Rack your brain: who exactly is testifying, and who is posing questions? And how exactly does one impeach a questioner?

(Sure, one can dispute the predicate of a question -- e.g., the classic "assumes facts not in evidence" objection -- but how do you impeach someone posing a question such as, "Did you know that they had a magazine?")

Feel free to attack my character in lieu of answering these questions.
1.12.2006 7:33am
Stephen M (Ethesis) (www):
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.
1.12.2006 8:11am
Jeremy Pierce (mail) (www):
If a Republican berates his Democratic colleagues for their misrepresentation and guilt-by-association tactics, and it leads to the nominee's wife leaving the room and crying, how could the fact that a Republican happened to be the one recounting the evil that took place absolve the evildoers from what they did? That's just nonsense. He was recounting the deeds of the people who had grossly sought to ruin the reputation of a man she knows to be a good man.

It amazes me how many people in this thread have failed to distinguish between an analogy with some salient comparisons and an equation of the same level of evil with respect to every component. Todd posted this because he noted that both cases involved pointing out membership in an organization a long time earlier with mention of views that each person had repudiated.

It's actually worse in this case in at least one respect, because CAP doesn't endorse the things it's being pretended that it endorses. Their journal published a wide variety of opinions, and some of them contradicted this one. They issue a disclaimer indicating that they don't endorse things their journal publishes, a disclaimer common in organizations' journals. They never opposed co-education as a group, even if some members did. They did oppose quotas, which were eventually declared unconstitutional by a liberal Supreme Court. At least McCarthy wasn't lying about the fact that the Communist Party supported communism. There were things worse about McCarthy. He did this repeatedly with many people, for instance. But surely there are some similarities! How can it be despicable to point out the evil that's common to both?
1.12.2006 8:47am
Dave's World (mail) (www):
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.
1.12.2006 9:03am
subpatre (mail):
Apodaca: "Thanks for ringing in, Jim, but it's a false analogy. Rack your brain: who exactly is testifying, and who is posing questions? And how exactly does one impeach a questioner?"

It’s not a false analogy. Courts exclude morally defective persons from decision influencing positions. In theory morally defective people are excluded when the attorney's association disbars attorneys; the state removes judges; voter rolls and the selection process blocks jurors; and impeachment blocks witnesses.

It’s an analogy I’d happily extend to a jury or to voters in an election; people who possess the common sense of ‘reasonable persons’. Morally defective persons are defective because their moral judgment, a decision-making process possessed by normal, reasonable people, is defective.

In the present case, Kennedy is asking questions “…such as, "Did you know that they had a magazine?” for a morally defective purpose: character assassination.

Apodaca: "Feel free to attack my character in lieu of answering these questions."

Not in lieu of, but that’s easy enough: You’re supporting Kennedy.

Kennedy faced a hard decision. On one hand, he could take the losing position to bad-mouth CAP, acting as cheerleader to his prejudiced supporters --including Apodaca.

Or he could really assassinate Alito’s character by implying friendship with the nominee.
1.12.2006 9:14am
WB:
1.12.2006 9:15am
George Gregg (mail):
"If a Republican berates his Democratic colleagues for their misrepresentation and guilt-by-association tactics, and it leads to the nominee's wife leaving the room and crying, how could the fact that a Republican happened to be the one recounting the evil that took place absolve the evildoers from what they did? That's just nonsense."

No, what's nonsense is your equating Graham's melodramatic and hyperbolic depiction of what the Dems had said and done with what they actually did abd said, and then suggesting that his blatant emotional manipulation had no impact on orchestrating Mrs. Alito emotional stress.

Sure, if there were no Dems on that panel, or if they had merely lobbed softballs at Alito while singing his praises like the Republicans, Mrs. Alito surely would never have cried.

But let's give Lindsey Graham his due - he put on an excellent show. In "defending" Alito from slights real and imagined -- complete with quavering voice and a tear in his eye -- and invoking Alito's children, he was in top histrionic form. Classic Roman rhetoric. And it had a predictable effect on Alito's wife who got choked up while he was doing it.

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

A nice, convenient meme - I'm sure it will spread swiftly.
1.12.2006 10:22am
George Gregg (mail):
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.
1.12.2006 10:32am
Bruce Hayden (mail) (www):
We really can't expect anything different from these hearings. Most of the Senators on the committee were, at best, indiferent law students. On the other hand, Supreme Court nominees are typically at the tops of their classes, most often from top law schools. One of the best descriptions I have heard of judge Alito is that he is a law nerd. That has been obvious from the hearings - whenever he is given the chance he expounds on all the legal minutia, including the factors in the three part tests, and the different tests utilized in different situations, and how they can be rationalized. All apparently without notes. I doubt if there is a Senator on the committee who can come close to going head-to-head with the judge on legal matters, apparently even after being well prepped by their staffs. He is on a completely different level than they are. It helps, of course, that he has spent the last 15 years on the bench doing exactly this, but I think innate intelligence and legal ability are also relevant here.

So, the Democrats on the committee aren't going to make him look stupid or incompetent, because, of course, he isn't. And they aren't going to do like they did with judge Bork, make him look arrogant, because he isn't. So what is left? What we are seeing in that hearing.
1.12.2006 11:36am
David Maquera (mail) (www):
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.
1.12.2006 12:22pm
gawaine (mail):
Personally, I find it entirely believable that Alito didn't remember any details about CAP. I was looking at an old resume of mine the other day, and saw that it included membership in a group that I'd forgotten I belonged to in graduate school. 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. However, as my next several resumes all cribbed from the first one, that membership showed up in all of them for several years.

So, I take exception to the "obviously, he's lying," meme. Even if I are a hoosier, as well. And while I think it's possible that tying McCarthy and Teddy together is an overexaggeration, you'll notice that CAP keeps coming back. If this were something that was being asked for the value of the answer, and Alito was not giving an answer, I would understand this. However, it's apparent that it is being asked for the virtue of having the question be published and widely heard. That approach - questioning along the lines of, "Have you stopped beating your wife," is something that has been associated with McCarthy in the past, and that I will associate with Teddy in the future.
1.12.2006 12:34pm
Apodaca:
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."
1.12.2006 12:37pm
Inspector Callahan (mail):
Check out the video again if you're unsure. Scope out when Mrs. Alito cries. What's going on when it happens?

NOW who's being willfully obtuse? Are you trying to tell me that all of the bloviating by Biden/Kennedy/Leahy et al., had NOTHING to do with Mrs. Alito's reaction? That hearing Graham say what he said helped Mrs. Alito release her pent-up rage at those bloviating senators?

Like what was said earlier - I TOO love people who can see black as white.

TV (Harry)
1.12.2006 12:50pm
SDOH:

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.
1.12.2006 1:17pm
Jeremy Pierce (mail) (www):
I'll grant the Graham's calling a spade a spade brought out her tears. I won't grant that he misrepresenting the shenanigans that his colleagues ought to apologize for. He was right to say what he said the way he said it. It's fine to ask him questions. It's not ok to act as if there's no way his answer could possibly be right or to pretend that the best explanation of what he's said is that he secretly hates women and minorities when that's so contrary to so many of his current and former colleagues have been saying about him. Graham made an argument. Not one senator responded to it. They continued to do what they had been doing without responding to it. That's testimony to how good his argument was. No one had anything to say about it. It strikes me as completely childish to do what they've been doing, and it's even worse when they grin as they do it (e.g. Schumer).
1.12.2006 1:33pm
Jeremy Pierce (mail) (www):
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.
1.12.2006 1:36pm
SDOH:
Jeremy: This is the portion of the hearing that I am referring to, on Day 2, between Alito and Leahy:


Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of CAP?

ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.

ALITO: But since I put it down on that statement, then I certainly must have been a member at that time.

But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don't.

And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time.

And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn't think that it was right to oppose the military for that reason.

And the issue -- although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus.

And the attitude seemed to be that the military was the bad institution, and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn't merit getting credit, that the instructors shouldn't be viewed as part of the faculty.

And that was the issue that bothered me about that.
1.12.2006 2:04pm
SDOH:
Sorry, link to Washington Post transcript.
1.12.2006 2:06pm
SDOH:
Note, by the way, the question &answer.

Q: Why, in 1985, was Alito proud of CAP?
A: (a) In (1973?) Alito was upset regarding Princeton's treatment of the ROTC; (b) In 1985 this issue made him proud of CAP.
1.12.2006 2:39pm
Kevin Fleming (mail):
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?
1.12.2006 3:07pm
ChuckL (mail):
The whole flap over CAP is not a serious substantive issue. It is a tactic within a game. Those who focus on whether Alito is "lying" when he says he can't remember any details of his involvement with CAP are playing the game. Likewise, those who defend Alito and say that his fuzziness is normal and innocent are also playing the game. Democrats play the game because they think that guilt by association with CAP is their best chance of turning the general public against Alito. Alito and the Republicans play the game because they have to or the Democrats will win it by default. As a tactic within political game playing, what each side is doing makes perfect sense ... but why are members of The Volokh Conspiracy playing the game--on either side? I thought the purpose of this blog was to engage in intellectual discussion and analysis, not political game playing. Intellectual games, puzzles, and riddles about politics and law, yes. But engaging in intellectually phony political games? ... I thought that was beneath this blog.
1.12.2006 4:02pm
SDOH:
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.
1.12.2006 4:07pm
Michael Kennedy (mail) (www):
It's interesting to see the Daily Kos crowd checking in. "Dartmouth elite" "Butt buddies at Powerline "

Excellent. I voted as a Dartmouth alum for Todd.

I've also had the distinction of having Michael Hiltzik, the lefty LA Times columnist call me a "disgrace to Dartmouth." It just doesn't get any better than that.

CAP sounds like the Princeton version of Dartmouth Review. Dinesh De Souza has already said that there were no "members." Only subscribers and supporters, just like the Review.

Let's face it (or not). Ted Kennedy is a drunken old lout who should be in a half-way house serving out his parole instead of jumping on waitresses in DC restaurants with his buddy Dodd.

Alito looks like an outstanding nominee although the questions did not display his intellect well since they were asked by gnat brained bloviators who plagerized their speeches or hired other students to take their Spanish exams or got booted from the Intelligence Committee for blabbing secrets from briefings.

Bush is only an average politician but he sure can pick his enemies.
1.13.2006 5:32pm