Purpose of the CAP Inquiry (Take 2):

The Comment Boards to my previous posts have a spirited discussion about what was the purpose of the CAP inquiry by Senator Kennedy yesterday? There appears to be two possible explanations. One hand, it may be to simply ask Alito about the organizations to which he belonged and to ascertain his views today. Or, on the other hand, to attempt to smear Judge Alito by engaging in guilt by association and innuendo to suggest that he is racist, sexist, elitist, gay-basher, as suggested in the article in the Washington Times today (which I noted this morning).

In deciding which of these two competing explanations is more plausible, one would expect to see very different approaches to the questioning by Senator Kennedy. If the purpose was simply to establish whether Alito had a meaningful association with the organization and what his views are today, then it seems to me that the questions that were asked would focus on those points. If this was the purpose, I cannot see why there would be any need to go into great detail in expostulating the views of other individuals associated with the organization, such as reading inflammatory and retrograde articles written in the organization's magazine. It seems to me that dragging out these long quotes would be utterly irrelevant to establishing the questions of Alito's relationship to the group, why he joined it, and what his views are today.

If, by contrast, the primary purpose of the inquiry is to cast aspersions and to imply that Alito was (and perhaps is) a racist, sexist bigot, then all of the hoary details would not only be relevant, but would be prominently featured as statements buried in the "questions."

So let's review the actual transcript of the exchange and see which interpretation seems more plausible in light of what was actually said. The transcript is very long, and so I have put it under hidden text for those who don't need to read it again. I have also taken the liberty of italicizing those portions of the transcript that go to Judge Alito's association with the organization and bold type on those portions that appear to be intended to suggest that Alito is a closet bigot. Obviously some readers will disagree with my classification scheme, but I don't think it changes the overall balance meaningfully.

So, note a couple of things about this exchange. At no point does Kennedy establish that Alito had a meaningful relationship with CAP or that he ever subscribed to the views laid out in the group's magazine. He quotes the articles from Prospect before he even asks Alito if he ever even read or received the magazine, much less the articles in question. He first describes the reasons why Frist and Bradley disassociated themselves from CAP before he asks whether Alito was aware that they had in fact done so. And why did Senator Feinstein find it so darned important to insist that Senator Kennedy finish the line about women, if the purpose of the inquiry was to establish whether Alito had read the article? Why say that his explanations for "membership in this, sort of, radical group" don't add up, rather than his "membership in the group"?

If the goal is to simply establish the purported facts, isn't much of Senator Kennedy's rhetoric and order of approach completely irrelevant or illogical? It seems to me, first you would establish whether he remembered reading the article and before you quoted the inflammatory rhetoric in it. Or you would ask whether he was aware that Frist and Bradley had dissassociated themselves at the time, and if he said yes, then you might discuss whether he shared their views. But to quote them and then ask him whether he had ever read any of the relevant stuff makes no sense at all, if this was his goal.

And if Kennedy were intending to raise questions about why he joined CAP in the first place, it certainly seems to me that he would have started the questioning with the discussion of ROTC, not tagged it on at the end, after he has grandstanded with all of the offensive quotes. Note that even when he requests the issuance of the subpoena, he does so by essentially asking Alito if he has anything to hide, with the innuendo being that he should confess now while he still has the chance ("Do you have any hesitancy or reason for us not to look at those documents?" "Do you think they'd be helpful?"). As others have noted, these documents and what is contained in them have been freely available for some time, so it also seems evident that Kennedy was asking these questions and for the subpoena in order to suggest that Alito had something to hide. And if his intent in this line of questioning was to find out whether Alito had connections to the group and to get access to the Rusher papers, why save all of the relevant questions to the end and take the wide-ranging detour through the materials in the organization's publication?

If, on the other had assume that instead his goal was to engage in guilt by association and try to imply that as a result, Alito is some sort of closet bigot. In that case, Senator Kennedy's line of questioning makes perfect sense. And this is exactly how the Washington Times story saw it. And it fits in with the overall strategy of Alito's critics, which seems to be to attack Alito by destroying his character and to suggest that he is a biased judge and person. If that was the goal, then you would first make sure that you read the inflammatory stuff, and only then would you ask whether he was actually aware of it or shared those views.

So, as I look at all this, it seems clear to me that the only reasonable conclusion that can be drawn from this colloquy is that the primary purpose of Senator Kennedy's questioning was to engage in guilt-by-association and innuendo to suggest that Judge Alito is a bigot who lacks the character to serve on the Supreme Court, not to resolve issues of credibility or to ascertain his current views on such matters.

Randy R. (mail):
Good analysis. It also shows Alito as a lying sob. He can't remember his membership? That's totally ridiculous. If he could remember it for his resume, something that you go over with a fine tooth comb, ever refining it, looking for typos and such, then he remembers being a member. To lie like that is as bad as Judge Thomas did when he said he never had thought about Roe v. Wade.
1.12.2006 9:24pm
Thorley Winston (mail) (www):
Actually what it shows is that the Alito haters like Randy Reade can't even read a transcript. Judge Alito didn't say he didn't remember his membership but that he didn't remember having "done anything substantial in relation to this group, including renewing [his] membership."

Keep firing those blanks.
1.12.2006 9:59pm
W.J.Hopwood (mail):
Mr. Zywicki's above analysis was excellent. Kennedy's objective was as clear as it was despicable. The suggestion by some that Judge Alito listed CAP on a job application many years ago with the intent to pander, is nonsense. On the contrary, wouldn't someone of integrity feel obligated to list his past and present organizational attachments (regardless of their controversial status or lack thereof) from an honest belief in full disclosure? Would it not have been dishonest not to mention it?
1.12.2006 10:22pm
Patrick McKenzie (mail):
Option #3: In the absence of anything that will sink the Alito nomination, Kennedy et al have to make a good show of attempting to sink the nomination to play to the base. Guilt-by-association to an organization which is diametrically opposed to literally a laundry list of the base's concerns is just one way to give them red meat. The alternative, a collegial multi-day chat over Alito's fairly impressive qualifications with some nonspecific pallaver about judicial philosophy followed by a painless confirmation, will not drive any GOTV or donation efforts.
1.12.2006 11:19pm
Zach (mail):
I've belonged to a society or two that I'm not likely to remember in 25 years. I'm sure that prominent lawyers have even more opportunities. At some level, society memberships are like magazine subscriptions: signing up for a magazine requires minimal effort and minimal commitment to reading the magazine in the future.

I haven't been following the story, so could somebody who's seen the application please give the context? Did Alito go out of his way to highlight his membership and activity, or was it a bullet point in a "Please list all memberships in professional societies or clubs" question?
1.12.2006 11:19pm
Fitzwilliam Darcy:

"The Comment Boards to my previous posts have a spirited discussion about what was the purpose of the CAP inquiry by Senator Kennedy yesterday? There appears to be two possible explanations."

Good grief, Todd. There is such a thing as overanalyzing the obvious.
1.13.2006 12:13am
This post seems much more reasonable than the McCarthy smear. Like I said in the other thread, Kennedy is a jerk.

1.13.2006 12:26am
tim (mail):
a poorly written post as a follow-up to a ridiculous comparison between some soft hearings and the McCarthy witch hunts. Your posts stick out like a sore thumb.
1.13.2006 12:59am
left-wing lunatic:
Also noteworthy, when Alito attempts to respond towards the end of the exchange, Kennedy tells him to keep it brief. Clearly Kennedy was grandstanding and just wanted to throw out all of this stuff and was not at all interested in Alito's response or answers.
1.13.2006 1:27am
Maybe the reason that Alito could remember his membership in CAP for his job application/personal statement in 1985, but no longer has direct memory of that now, is that CAP still existed in 1985, but apparently went out of existence around 1987. Nobody has been a member of CAP for the last 18 years, and they aren't still soliciting funds from alumni or publishing anything, so the memories of their members -- particularly the mere dues-payers with no active involvement -- could easily fade over that time.
1.13.2006 2:22am
Tumbling Dice:
How appropriate that when the smear tactics of the left are pointed out, nay proven, with the clarity of this post, the lefty comment posters resort to name calling ("SOB") and criticisms of the style of posting ("poorly written"; "stick out like a sore thumb").

Notably absent is any rebuttal on the substance of the post that this was nothing more than a smear campaign.
1.13.2006 7:18am
There's a meaningful difference between an attempt to demonstrate "guilt BY association" on one hand, and "guilt OF an association" on the other. If Oliver North or Ted Bundy were a member of CAP back in the day, and that was the substance of Kennedy's questions, it would be the former.

It's entirely possible that I joined the local Klan or Hells Angels chapter because they have great barbeques and I fully support their Christmas toy drive. Should anyone going to believe that when I'm testifying in Washington?
1.13.2006 8:59am
NickM (mail) (www):
Is there no one in the Democrat Senate Caucus with the ability to tell Senator Kennedy that due to his own well-known history, he is the last person who should be engaged in extended questioning of Alito's character? Or has he been told, but chooses to ignore the counsel? He polarizes, but not in a favorable way - he has no ability to convince those outside the Democrat Party base.

1.13.2006 4:24pm
Phil Dillon (mail) (www):
I'm a Democrat, born in Kennedy's home state.

I believe the senator went way beyond the bounds of decency. There are legitimate lines of inquiry, but what he did was anything but legitimate. There isn't a shred of doubt in my mind that it was a deliberate attempt at character assasination.

I also remember the Army-McCarthy hearings when I was young. Senator Kennedy's performance came as close as anything I know to what the senator from Wisconsin did to a lot of people back then.

We should be beyond that type of offensive behavior by now. But, apparently we're not.
1.13.2006 5:15pm
Fred MacMurray:
The notion that an intelligent and concerned alum of any institution joined without knowing anything about the organization he or she was joining casts doubt on the intelligence of that individual. The notion that an intelligent, engaged, and so forth, individual could have avoided the controversy Sen. Ken detialed is equally beyond belief. The fact is that the Judge may have then held those beliefs or something much like them and, thus, he joined. So what? Who was not a dolt and an idiot? What stinks in this particular case is the Judges refusal to admit that he was once a dolt and an idiot. Oh sure, many will insist that in the "current climate" the Judge would be destroyed. Nonesense. If the Judge were really interested in gaining public support, mine for example, he would have said: I was wrong. I can remember, despite my best efforts to forget, all manner of stupid things I once thought and can, without difficulty, think of another public servant with a long a distinquished record who once belong to a more horrific organization but whose record shows that his membership was an abberation; I mean, of course, Sen Byrd. Sen Kennedy's questions were telling because the Judge refused to acknowledge that he had, thank god, grown intellectually and is now not the man he once was. To deny that he was once a dolt and idiot on this matter is to deny that he has over the years become an adult. Intellectual, moral, and philosophical growth are what one would wish in anyone seeking any job but is particularly desirable in this particular case.
1.13.2006 7:39pm
Paul D (mail):
My three Sons: It might be tempting to slam another Member of the Senate, but there probably isn't any act more likely to lose a majority of votes by either party in that House. So he might have earned your respect and the public's, but would have promptly returned to the Court of Appeals with no respect from any member of the Senate. His only option was to deal with it as he did. Acknowledged that he was a member, and remind the defamers that the documents and publications are not his writings, that he has never associated himself with those views, and doesn't even remember reading the junk mail he may have received from these crackpots.
1.13.2006 10:40pm
Thorley writes: Actually what it shows is that the Alito haters like Randy Reade can't even read a transcript. Judge Alito didn't say he didn't remember his membership but that he didn't remember having "done anything substantial in relation to this group, including renewing [his] membership."

Keep firing those blanks.

Thorley, them ain't blanks. Them is real bullets. Alito said many things about his membership. You heard one of them, so you assume there were no others? In fact, he did say that he didn't remember it, an obvious lie. He said he must have been a member since he listed it on his resume, but he remembers nothing about it.

If Alito hadn't put it on his resume, and then said he didn't remember being a member, that might be believable. But if you remember something twelve years later, you remember it 32 years later. The point is, you remember it.

As for "renewing his membership", if he didn't remember the organization, how did he remember that he didn't renew his membership? No doubt his friends at the National Review told him exactly what was in the records. Having ascertained there was no written record of his membership, he put together his answer.

The CAP issue was insignificant, whether he remembered or he didn't. But it did provide another opportunity to see Alito twist the truth, in a less than flattering way. The real problem is that the Dems on the committee are so morally bankrupt themselves (with the isolated exception here or there) that when confronted with someone with serious
moral problems himself, they couldn't see it, and had to resort to pathetic, embarrassing theatrics.
1.14.2006 6:35am
Those are not the only two possible explanations for Kennedy's questioning. A third explanation is that he's questioning neither Alito's views nor his character, but rather his judgment. I would be inclined to vote against a nominee who joined the KKK (and affirmatively mentioned it on a job application many years later) even if I thought that nominee were not a racist (and never was). In such a situation, I would ask him why he joined. If he said, I joined because I was a libertarian and so I joined as a symbolic act in support of free expression of ideas, I would reconsider (but might still vote against him). If he said, I just don't remember, I would question his judgment and/or intelligence, and would consider him not to have effectively rebutted my presumptive no vote.

CAP is not the KKK, of course, and people can reasonably disagree as to the appropriateness of CAP's positions. But Kennedy's diatribe was designed to indicate views of CAP members that, like those of the KKK, he considered objectionable. Alito did not say he wasn't aware of those views and he did not say he did not find those views objectionable -- in fact, he essentially said the opposite. Therefore, unless one takes at face value that Alito in fact did not remember why he joined an organization that he years later placed on a job application (and even a Republican partisan must admit that it's reasonable to doubt this explanation), would not one, especially one who--like Alito--also finds the views objectionable, naturally question Alito's judgment?
1.14.2006 6:10pm
Addendum: When I say Alito said he wasn't aware of those views, I mean that he did not disavow knowledge of what the group stood for at the time he joined.
1.14.2006 6:15pm
NickM (mail) (www):
If Alito hadn't put it on his resume, and then said he didn't remember being a member, that might be believable. But if you remember something twelve years later, you remember it 32 years later. The point is, you remember it.

You are kidding, right?

1.16.2006 7:53pm