pageok
pageok
pageok
Purpose of the CAP Inquiry (Take 2)--Comment Thread:

I still can't seem to get the Comments function to work on my earlier Posts. Given the response to my earlier posts on this topic, I'm guessing that readers would like to Comment, so I will open this thread here to provide an opportunity for interested parties to post Comments on that post if they are so inclined.

Commenterlein (mail):
Todd,
I honestly think you are missing the point completely: Alito proudly put his CAP membership onto a job application in 1985, most likely to signal his political views to the people in the Reagan administration he was applying to. Since we are trying to learn something about his view, it is obviously relevant what CAP stands for, and what Alito was in fact signalling by putting his membership onto that application. The truth is that it shines a really bad light on both Alito and the friendly folks in the Reagan admininstration who hired him.

To make it more concise: It is not guilt by association if Alito himself proudly created that assocation in 1985.
1.12.2006 5:55pm
byomtov (mail):
Of course it's not guilt by association. When you join an organization which has specific aims and views you are saying you are aware of and support those views, perhaps not universally, but in general.

Alito joined CAP and was proud of it. He either was a fan of the organization or was willing to lie about it to get a job.
1.12.2006 6:05pm
Blar (mail) (www):
Isn't the reading of the offensive quotes intended to establish the relevance of the questioning? Nobody would care about CAP and Alito's relation to it if CAP didn't stand for all these noxious views. And this isn't some "six degrees of separation" guilty by association game. The fact is that Alito chose to join this group, and to publicize that fact on his resume, and these are the views that CAP promoted in its official publication. So the question is: what was Alito doing in this openly bigoted group? Did he agree with their troubling views, or was he willing to associate with them despite these views for some other reason (such as advancing his career)? Or was he really just completely unaware of their views? This last option is made less plausible by the fact that other people who ran in similar circles were publicly denouncing the group and distancing themselves from it, and that he chose to put his membership on his resume. Why put that on your resume if you barely know anything about what the group stands for? Alito has made it clear that he's going to give nice answers with minimal content if he's asked directly about this stuff - I don't remember, bigotry is bad, etc. - but his convenient forgetting leaves some room for doubt about whether he is being entirely forthright.
1.12.2006 6:06pm
arthur (mail):
I'll grant that the motivations of Senator Kennedy in asking the questions may be relevant to Massachusetts voters. Will Zywicki agree that the motivations of Judge Alito in boasting of his claimed CAP membership in 1985 are relevant to the senators who will be voting on him?
1.12.2006 6:16pm
Nunzio (mail):
After looking at all of this it seems like Alito was likely aware of what CAP was up to in general and thought whoever was going to see this on his resume would approve. It doesn't seem like Alito personally espoused the crap CAP was putting out, but he didn't mind using it to get ahead.

Basically, Alito's an opportunist, like the rest of us. He's certainly playing dumb and distancing himself from it now, which is what most people would also do. Given his overall background and record, it's not very strong grounds to keep him off the supreme court.

But I don't think it's a big deal at all that Kennedy called him out on it. It might be grandstanding on Kennedy's part, but Alito deserves a little skewering for his opportunism.
1.12.2006 6:26pm
Chris D (mail):
That this is the most controversial issue to come out of the confirmation hearings of a man who's served on the 3rd Circuit for 15 years speaks to both how well qualified he is and how little ammunition his detractors have been able to come up with.

Simply listing an organization on a resume now more than 20 years old does not make you "proud" of your involvement with that group. That's not how resumes work. The most one could realistically infer from that is what Alito believed the Reagan Administration's views to be at that time, and that he was guilty of a bit of brownnosing. One might even have the audacity to suggest that the Democrats actually read his record and listen to the testimony of his colleagues if they wanted to determine if he was the sexist, racist monster that they mean to insinuate that he is.
1.12.2006 6:32pm
Blar (mail) (www):
Here's a report from someone who has paid much closer attention to the hearings than I have, Dahlia Lithwick at Slate. The focus seems to be on Alito's opportunism in 1985, not his bigotry. What I want to know is whether he's been lying about this since his nomination.

Several Senate Democrats point out this morning that Alito's involvement with a group dedicated to keeping women and minorities out of Princeton is almost impossible to reconcile with the Alito praised by colleagues and academics as scrupulously ethical. Joe Biden—perennially on the brink of becoming a Saturday Night Live parody of Joe Biden—puts it this way: "You don't impress me as someone—especially from your background—that would want to keep Princeton as—I won't go back and read the quotes—keep Princeton as, you know, 'Imagine my father's 50th reunion, having 40 percent women. Isn't that awful?' You don't impress me to belong to that club." That's an allusion to the Sam Alito who is too blue-collar, too ethnic, to align himself with CAP.
...

It's now 5:15 and Chuck Schumer has led the judge to the brink of a big psychological breakthrough. In response to the umpteenth questioning about why he "plucked out and picked this one group to put on his application in 1985," Alito finally, truthfully responds: "I was applying for a position in the Reagan administration. My answers were truthful. I listed things relevant to obtaining a political position."
1.12.2006 6:43pm
frankcross (mail):
It can be relevant but isn't necessarily being done One issue is timing. I.e., did Alito belong to CAP at a time when it made objectionable statements? The Democratic Party was once racist but a current association wouldn't involve that. A second is the content of CAP formal policy. I've heard a lot about comments made by members or in the magazine, but those are not necessarily associated with the organization's policy. Dems don't necessarily embrace the comments of every Dem, even leaders.

It's possible that he was a casual member who knew little about the organization. I think it is fair nonetheless to ask him about the organization he joined and put on his resume. However, it's not fair to tar him with a brush that includes all comments made by anyone associated with CAP at any time.
1.12.2006 6:47pm
Paulg (mail):
Alito's a Catholic too, therefore he must share the views of Tomas de Torquemada.
1.12.2006 6:48pm
PD Shaw (mail) (www):
The third contention being made in reference to CAP is that Alito told the Reagan administration certain things when it was convenient for his career aspirations and he is completely capable of telling the Senate what is convenient now. THIS MAN CANNOT BE TRUSTED. What he says about abortion and executive power is merely convenient.

I don't believe that, but I think that's the thrust of the argument (albeit not really made by Kennedy).
1.12.2006 6:57pm
Observer (mail):
If Sen. Kennedy did not have absolute immunity for remarks made in Committee, he would be liable for damages for slander.
1.12.2006 7:23pm
Observer (mail):
The Democratic spin that Alito "cannot be trusted," is a "liar," a "racist," an "ideological extremist," blah, blah, blah is, fortunately, only catching on with the 20% of the population that is hard core leftist. Everyone else listens to the judges who sit with him, the lawyers who practice before him, and the ABA Committee which reviewed him, and sees a large disconnect between what these relatively disinsterested folks have to say and what the Democratic partisans are saying.
1.12.2006 7:29pm
Defending the Indefensible:
I have a similar problem with his explanations about Vanguard. No, not that he heard the cases, nor that they posed any actual conflict of interest. Even the promises he may have made in the past, are beside the point.

What bothers me is that he made up at least THREE different excuses for it. First, it was a computer glitch. Then it was an oversight. And then, it didn't matter anyhow because it wasn't an ethics violation. But he decided to recuse anyhow, even though he hadn't done anything wrong. Etcetera. This is a man who is not TRUSTWORTHY, he says what he thinks he needs to say to get what he wants, without regard to the truth.

Do not put this man on the Supreme Court.
1.12.2006 7:31pm
Defending the Indefensible:
By the way, I am not a Democrat, and I have no partisan axe to grind. I like John Roberts, I think he's a decent man and I genuinely believe he will be a great Chief Justice. Alito is no John Roberts.
1.12.2006 7:33pm
Moral Hazard (mail):
Now that the CAP records have been gone through and showed no association with Judge Alito I fully expect the left to turn around and accuse him of having lied on his resume about having been a member, and thus he's too unethical to sit on the supreme court.
1.12.2006 7:39pm
David Matthews (mail):
Could we stop with the "proudly," "bragged" and "touted" nonsense, already?

It was addressed best here, but also here and here. If one is actually concerned to consider the fitness of a Supreme Court nominee, perhaps avoiding emotionally charged partisan vitriol might help not only to frame one's own opinion, but also to sway that of others.
1.12.2006 7:40pm
John Lederer (mail):
I don't feel that I have any idea what CAP's goals were, nor what the context of Kennedy's quoted material was.

I hear that they opposed women at Princeton, then that they opposed lowering standards for women and minorities, that they opposed quotas/goals, and that their editor was a woman?

Does anyone know a reference, removed from this imbroglio, that can give me a better idea what CAP was for, particularly in 1985?

After all, one could give some pretty horrendous quotes from the 1948 Democratic convention.
1.12.2006 7:50pm
Kazinski:
This was on the Drudge Report Monday (via Opinion Journal)

One Democrat Hill staffer involved in their strategy declared, "Put a fork in Scalito [sic]. It doesn't matter that Alito didn't write it, it doesn't matter that Alito wasn't that active in the group, Foote wrote it in CAP's magazine and we are going to make Alito own it."


I know Drudge is taken with a large grain of salt sometimes, but I think since this was written Monday before the hearings started that it has an extra imprinture of credibility, since it is exactly what the Democrats tried to do. But didn't succeed. I don't think there is any doubt that the Dems tried to smear Alito by a very tenuous association. Some of CAPS more active members were:

Laura Ingram (Editor of Prospect)
Dinesh d'Souza (Editor of Prospect)
Bill Bradley
Bill Frist

Ingram doesn't strike me as being particularly anti-woman. Has any body got any evidence that CAP wanted to keep women and minorities out of Princeton, as opposed just being against preferences?
1.12.2006 7:57pm
SDOH:
Glancing at the links, it is true that "listed" is a more more dispassionate description than "touted."

But Alito didn't "list" the CAP on a form. He wasn't filling out a 10-40. He was applying for a job, an activity in which you "tout" your qualifications. The CAP came on the second page of an (appended and type-written) personal statement.
1.12.2006 8:03pm
ROA:
DTI It sure makes sense to me to pay more weight to a trivial issue like Vanguard than the seven judges that worked with him for time frames ranging from several years to decades, especially when they include women, Democrats, and blacks whose practice focuses on civil rights.
1.12.2006 8:09pm
SDOH:
(Addendum to previous post) It looks like he was responding to either: (p.7)
a) "Please provide any information that you regard as pertinent to your philosophical commitment to the policies of this administration, or would show that you are qualified to effectively fill a position involved in the development, advocacy and vigorous implementation of those policies"; or
b) "Have you ever served on a political committee or been identified in a public way with a particular political organization, candidate or issue? (Please be specific and include contacts with telephone numbers.)"

[Also, the question preceding (a) is to explain himself if he did not vote; and the question between (a) and (b) is to indicate any Regan/Bush involvement, including campaign involvement.]

These are undoubtedly questions regarding the applicant's political philosophy. And because he didn't include the CAP's contacts and telephone numbers, one would infer that he was "touting" his membership as a signal to question (a), his political philosophy.
1.12.2006 8:10pm
Defending the Indefensible:
ROA,

I think I was clear. I don't care about CAP. I don't care about Vanguard. I think dishonesty is a big problem.
1.12.2006 8:18pm
A.S.:
Holy crap! Everyone is missing something here. I just read the personal statement linked above. In it, Alito "touted" "proudly" that he was a member of PHI BETA KAPPA!!!

Doesn't everyone realize that Phi Beta Kappa excluded women and minorities for a century! That must necessarily mean that Alito is insensitive to women and minorities! He's a RACIST! BIGOT! SEXIST!

Set up the filibuster folks! We can't have anyone who has ever been associated with this egregious, reprehensible organization, Phi Beta Kappa, on our Supreme Court.
1.12.2006 8:27pm
SDOH:
Did Phi Betta Kappa excluded women and minorities in 1985?
1.12.2006 8:28pm
SDOH:
(having "obvious" trouble with typos today.)
1.12.2006 8:29pm
A.S.:
"I think dishonesty is a big problem"

Me too. Which is why I was in favor of impeaching Bill Clinton. I assume that everyone who thinks dishonesty is a big problem felt the same way.
1.12.2006 8:30pm
Defending the Indefensible:
A.S.

Yes. I was in favor of Clinton's impeachment, too.
1.12.2006 8:30pm
A.S.:
"Did Phi Betta Kappa excluded women and minorities in 1985?"

I don't think so. So what? Anyone ever associated with that organization is automatically assumed to have agreed with every single position it ever took, right?
1.12.2006 8:32pm
For What It's Worth:
There's a heated discussion about CAP happening on one of Princeton's alumni e-mail listserves. Different alumni remember the organization very differently. Some snippets:

1) CAP was "undoubtedly hostile" to a variety of groups (women, minorities, gays, etc.)

2) #1 presents "very much a revisionist history." CAP was not in favor of coeducation, but coeducation was already a fact. CAP was not hostile to minorities, but rather against preferences. CAP was critical of liberal faculty. "[N]o evidence of homophobic tendencies coming from CAP."

3) Agrees with #2. CAP's principal aim was "to head off 'quotas', gender and ethnic, as the New Princeton got off the ground." Magazine published "lots of silly stuff," but it is absurd to think that every member held those views.

4) Magazine lacked serious articles by the early 1980s and included "gratuitously racist and sexist material." The magazine "was too vindictive to be respected." "CAP wasn't just conservative. It was an organization that encouraged intolerance and the Prospect I remember was an ugly, thuggish little magazine."

5) #4's impressions fit "[t]o a tee."

6) CAP started out seeming "dumb and quaint" and then "degenerated significantly."

Etc.
1.12.2006 8:35pm
David Matthews (mail):
Good lord. I hope you're just being partisanly obtuse, rather than patently stupid. "A signal to question A" rather than a direct answer to question B, simply because he didn't put down telephone numbers that he obviously didn't know? When his response involves organizational membership, might we not conclude that he's addressing a question that asks about "particular political organizations?" Especially since the paragraph in question begins "As a federal employee subject to the Hatch act, for the past decade I have been unable to take a role in partisan politics. However, ...."
1.12.2006 8:36pm
A.S.:
In fact, I think I understated the position. Anyone ever associated with Phi Beta Kappa is automatically assumed to have agreed with every single position it ever took and every single positions that was ever published in its magazine, right?

Who knows what kind of retrograde articles were published in the Phi Beta Kappa magazine in, say, 1840?! Even more reason to filibuster until we have Senate staffers go through every single Phi Beta Kappa magazine ever published in order to ascertain exactly what Samuel Alito thinks.
1.12.2006 8:37pm
SDOH:
Moreover, did he didn't (as far as I can see) talk about Phi Betta Kappa in response to:

"Please provide any information that you regard as pertinent to your philosophical commitment to the policies of this administration, or would show that you are qualified to effectively fill a position involved in the development, advocacy and vigorous implementation of those policies."

The point is not why Alito joined CAP when it was a newly-founded organization in the late 1970s; but why he appears dishonest today when talking about why he may have written this in 1985.
1.12.2006 8:37pm
A.S.:
But Phi Beta Kappa was "proudly" "touted"! It must mean he agrees with everything it has ever stood for.

I don't see any reason to think that he is any more dishonest about CAP than he has been about Phi Beta Kappa.
1.12.2006 8:40pm
Defending the Indefensible:
I think we shouldn't favor or oppose a nominee on the basis of his political ideology. I do think we should disfavor a nominee who is unqualified (Miers) or dissembles (Alito). We should have nominees in the mold of John Roberts, but we should not support someone who may share his ideology but not his qualifications or character.

How hard is this to understand, and why is there so much narrow partisanship about what should be commonly agreed?
1.12.2006 8:41pm
SDOH:

Good lord. I hope you're just being partisanly obtuse, rather than patently stupid


Don't be a jerk. I wrote that it could be either (a) or (b). If I'm wrong, then I'm wrong. I was assuming the Alito was a careful reader, applying for an important job, and would have answered (b) carefully, if he was attempting to.

Moreover, (b) doesn't ask for campaign contributions; and his membership in CAP (presumably) something where he was identified in a public way with them. Supporting politican candidates and belonging to particular organizations both signal his commitment to the administrations political philosophy, answering (a).

Finally, it could be both (a) and (b), they aren't mutually exclusive.


"Have you ever served on a political committee or been identified in a public way with a particular political organization, candidate or issue? (Please be specific and include contacts with telephone numbers.)"
1.12.2006 8:47pm
Defending the Indefensible:
SDOH:

Alito answered this himself:

"I was applying for a position in the Reagan administration. My answers were truthful. I listed things relevant to obtaining a political position."
1.12.2006 8:53pm
SDOH:

I think we shouldn't favor or oppose a nominee on the basis of his political ideology. I do think we should disfavor a nominee who is unqualified (Miers) or dissembles (Alito).


My basic problem (though I'm not sure if it merits a "no" vote) is with Alito's (seeming) dishonesty. (I also had this problem with Justice Thomas testifying that he had never discussed Roe.)

But I'm not sure about whether one should vote on political philosophy. I'm currently with you (shouldn't), but I'm not sure if this is just because that's the way that things are now. A stare decisis, of sorts.

(the following was already posted in comments, if this is a no-no, I apologize. And, it is lengthy.)

Alito is qualified to sit on the Supreme Court, but perhaps this should be a necessary rather than sufficient condition of appointment.

More than 9 people are qualified to sit on the Court. I would estimate that probably over 100 judges/lawyers/academics 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 Senate confirmation would revolve around why this qualified candidate, rather than another, 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. This line of inquiry would have the benefit of allowing the electorate a limited check on the judiciary (something of great interest to a democracy), rather than simply focusing a national spotlight on a search for personal inadequacies (something of very little interest to a democracy.)

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

The question, for me, is this: How should we divide power?

Because I would like to promote inter-branch separation of powers, 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.)
1.12.2006 8:54pm
SDOH:

"I was applying for a position in the Reagan administration. My answers were truthful. I listed things relevant to obtaining a political position."


I guess I missed this. What I was going on was the Day 2 exchange, between Alito and Leahy. (When he was first asked, not when he may have had time to go back consult with somebody.) But, if he revised his remarks to this, I would be satisfied that this is a truthful response.
1.12.2006 8:55pm
Moral Hazard (mail):

The Senate confirmation would revolve around why this qualified candidate, rather than another, should be appointed.

But that's the President's call, not the Senate's.
1.12.2006 9:08pm
ROA:
DTI -- So you think you are better able to evaluate Alito's honesty based on to extremely minor issues that occurred decades ago better than seven judges who worked with him for years? Or, the judges knew he was lying, but don't really care because honesty is not a trait they think is important?
1.12.2006 9:09pm
claritas:
I would also take issue with Prof. Zywicki's, Drudge's, et al's lamenting the "harshness" of the questioning of Alito. Much harsher questioning takes place on cross-examination in the most insignificant civil litigation in open court and in depositions every single day. It seems somewhat odd that we would complain about this style of cross-examination when we are deciding whether or not to select a person who will be presiding over a system that relies on cross-examination as a truth-eliciting device.

And when cross-examining a witness, everything that Prof. Zywicki complains about is fair game. Alito was admittedly a member of this organization and even bragged about it. Therefore the nature of this organization is highly relevant. And the statements this organization has made are relevant to the nature of this organization.

Finally, in a process as calculated and obfuscatory as the prepping of a Supreme Court nominee--and especially one as well-prepared and groomed as Alito--ANY foothold on Alito's real personality is not just fair game: it's essential.
1.12.2006 9:10pm
Defending the Indefensible:
Moral Hazard:

Do you agree that the Senate should ascertain the character as well as the qualifications of the nominee?
1.12.2006 9:10pm
David Matthews (mail):
"I was assuming the Alito was a careful reader, applying for an important job, and would have answered (b) carefully, if he was attempting to."

By your interpretation, he didn't answer question (B) at all, even though he said "see attached sheet." That would be less "careful" than my interpretation. Seldom does a careful applicant say "see attached sheet," then attach nothing that addresses the question. Witness the fact that he left the question between blank, didn't say "see attached sheet" and included nothing addressing that question. I assume that if he said "see attached sheet," something that was "attached" was pertinent to the question, most likely his very slim list of political affiliations, that he was obviously attempting to excuse by reminding the reviewers of his Hatch commitments, and then thicken by including anything he was remotely involved with, even if he didn't know enough about it to include any contact information. If this were a name of some civil rights group, partisan Democrats would be using the verb "scrounging;" since it's some anti-affirmative action group, they use the term "touting." Fact is, this application demonstrates, rather clearly, that Alito had scant political affiliations, which I would think, while being a problem for a Reagan Justice Department applicant, would be a plus for a Supreme Court nominee.

And it's not being a jerk to call deliberate partisan obtuseness what it is. Do you believe that liberals use code words to send "signals" of things in order to "tout" them? Or is this oxymoron exclusive to the secret racist, sexist world of the conservative?
1.12.2006 9:12pm
Defending the Indefensible:
ROA:

Perhaps we shouldn't bother with having these hearings and ascertaining the qualifications and character of nominees, just ask "seven judges who worked with him" and if they say he's a nice guy, on he goes.
1.12.2006 9:13pm
Charlie (Colorado) (mail):
Folks --- I subscribed to Time and Newsweek for years; I don't necessarily believe everything that Molly Greenwald or Joe Klein said in an op-ed.

Trying to characterize Alito by reading occasional pargraphs from occasional articles over a span of years would be much more annoying if it weren' so stupid.
1.12.2006 9:15pm
Defending the Indefensible:
David:

In my experience Democrats have lots of code words, they like to talk about "privacy" when they mean abortion, for instance. It's common among all partisans to use shorthand for divisive issues.
1.12.2006 9:15pm
Moral Hazard (mail):

Do you agree that the Senate should ascertain the character as well as the qualifications of the nominee?

No.
1.12.2006 9:17pm
Defending the Indefensible:
Moral Hazard:

I see. Are there any grounds on which the Senate should ever decline confirmation?
1.12.2006 9:25pm
jahoulih:
Molly Greenwald? I'm not sure what Molly Ringwald has in common with the late Meg Greenfield, but somehow they have become conflated.

Joining CAP is not really analogous to subscribing to Time or Newsweek. It's more like joining the Democrats or the Republicans or the Wobblies or the John Birch Society: it doesn't mean one agrees with all the views of every member of the organization, but it suggests some sort of shared ideology.
1.12.2006 9:28pm
Moral Hazard (mail):

Perhaps we shouldn't bother with having these hearings and ascertaining the qualifications and character of nominees, just ask "seven judges who worked with him" and if they say he's a nice guy, on he goes.

For most of U.S. history they didn't even hold hearings, let alone require the nominee to testify. For instance when William Howard Taft was nominated to be Chief Justice he was confirmed the very same day!
1.12.2006 9:34pm
Moral Hazard (mail):

I see. Are there any grounds on which the Senate should ever decline confirmation?

Yes, when the nominee isn't qualified.
1.12.2006 9:36pm
David Matthews (mail):
DtI, I agree completely. While I buy that right-wingers say "border security" when they're worrying about losing their job to a foriegner, and left-wingers say "fair trade" when they're talking about the same thing, and I agree that "reverse discrimination" means "how dare you do to me what I've been for years able to do to you," I do doubt that "and a member of Concerned Alumni for Princeton University, a conservative alumni group" (note that he felt he even had to append the "a conservative alumni group" out of fear that the name would be meaningless to those reviewing his application) means, or ever meant "I'm a racist and/or sexist just like you, so please hire me."

And I carry enough concern for our language to defend the proper use of terms such as "list," "tout," and "brag."

What Alito did could in no wise be construed as "bragging;" it only passes for "touting" insofar as anything mentioned on a job application is "touting;" (to tout = to "toot," i.e. to blow one's own horn, so, technically, everything on my application, including the high school from which I graduated is a "tout," although I would take exception when someone at the VC accused me of "touting" the fact that I graduated from Seward High School. I'd characterize that more as a reluctant admission, included simply to prove that I did, indeed graduate, somewhat akin to the obvious scrambling for evidence of political activity seen in the Alito application.)
1.12.2006 9:40pm
Reg (mail):
Gosh this is a stupid deal. Has anybody ever read a college publication? Most opinion articles are poorly written and sarcastic, often making hamhanded attempts at politically incorrect edginess.
Is there any basis to attribute the offending statements to anybody other than the author? If there is, I haven't heard it.

To suggest that a man with the integrity and dedication of Alito is a bigot, based on such flimsy evidence, is shameful and destructive to our society and government.
1.12.2006 9:42pm
Thorley Winston (mail) (www):
I would also take issue with Prof. Zywicki's, Drudge's, et al's lamenting the "harshness" of the questioning of Alito. Much harsher questioning takes place on cross-examination in the most insignificant civil litigation in open court and in depositions every single day.


How harsh should Alito be crossed compared other SCOTUS nominees, say Ruth Bader Ginsberg?
1.12.2006 9:43pm
Nunzio (mail):
Reg,

A lot of people aren't calling Alito a bigot, they're saying he's an opportunist and is now being dishonest in his testimony about his knowledge of CAP. He used CAP's credentials when it suited him and now claims he didn't know anything about them. If you didn't know anything about them as a 35 year old, why would you put it on a job application? His answer's less than satisfying.

I think he should be confirmed but I don't think that Alito has any more integrity than any one else based on his dishonest answers now, and his willingness to use CAP to his advantage when it suited him.
1.12.2006 9:46pm
Reg (mail):
Another thing, is it too much to ask that those who favor affirmative action concede that many who oppose affirmative action do so in good faith because of its unfairness or because they believe in meritocracy, and not because they hate minorities?
1.12.2006 9:47pm
nunzio (mail):
Reg,

I favor limited affirmative action and agree that many people who oppose affirmative action have good points and are not racists, etc.
1.12.2006 9:50pm
Chris D (mail):

What bothers me is that he made up at least THREE different excuses for it. First, it was a computer glitch. Then it was an oversight. And then, it didn't matter anyhow because it wasn't an ethics violation. But he decided to recuse anyhow, even though he hadn't done anything wrong. Etcetera. This is a man who is not TRUSTWORTHY, he says what he thinks he needs to say to get what he wants, without regard to the truth.


Perhaps there are simply multiple reasons for why a particular accusation is true or false. For example, if you said to me, "You and your brother were active in the Klan when you attended Bob Jones University, weren't you?", my response would be: "No, I don't have a brother, I didn't go to Bob Jones, and I've never had anything to do with the Klan." Just because I have multiple "excuses" does not make any of them less valid, unless they are somehow competitive with each other. All of them could easily be true, and the only reason to doubt the man's integrity is to challenge a particular "excuse" on its merits.

The people who'll end up voting against Alito because of some alleged "dishonesty" are largely the same crowd who voted against Roberts because at the end of day, despite being a stellar witness with a pearly-white paper trail, they just didn't trust him. Same deal with Alito. When they couldn't make any respectable attack on his record, and Vanguard and CAP came up flat, they fell back on the last argument they had: Fleeting notions of dishonesty that can't be proven, only accepted on faith that stems largely from a dislike of the man who nominated him.
1.12.2006 9:54pm
Defending the Indefensible:
David,

I find political theater to be interesting, because although I am neither a Democrat nor a Republican, nor a partisan of any other stripe, I am concerned about the government from the standpoint of an external observer that may be affected by what it does, not as a member of any ruling or would-be ruling class.

I'm seriously unconcerned with whether or not Alito may have had politically incorrect associations in the past, as an issue unto itself. He could have admitted it or denied it, but instead he claimed not to remember. Granting that he may have forgotten an association which he thought was important enough to put down on his job application in 1985, I am struck by his dissembling on how he came to hear and then recuse himself on the Vanguard cases. Again, it's not whether he should have recused, but why he came up with at least three separate explanations and reversals on the same question.

He's not honest. Fundamentally, that's a problem.
1.12.2006 9:57pm
David Matthews (mail):
"Has anybody ever read a college publication? Most opinion articles are poorly written and sarcastic, often making hamhanded attempts at politically incorrect edginess."

I have to admit, I passed right over this the first time I read it; I didn't see how it mattered. But this is a really important point. On the one hand, a 35-year-old applicant Alito should know this, and not bother to include any affiliation with said organization on a resume, since said organization is bound to have written some seriously ham-handed things; on the other hand, if he did include it, who the hell cares, since every member of the Senate committee should be grown up enough to realize that these types of organizations say stupid things. About the only conclusion one can reach is that Alito was hired in spite of his mention of CAP in his application at Justice, rather than that he was hired precisely because he touted the signal that he agreed with the Reagan racists by putting CAP surreptitiously into his application; and he is only now being foiled by the diligence of the Kennedy staffers.
1.12.2006 9:59pm
Defending the Indefensible:
Chris D:

I supported Roberts, and I think he'll be a great CJ.

I'm reminded of the old one about the guy who was accused of stealing who said, "I didn't steal the money, and anyhow I gave it all back."
1.12.2006 10:02pm
Chris D (mail):
I'm reminded of the old one about the guy who was accused of stealing who said, "I didn't steal the money, and anyhow I gave it all back."


Those would be competitive excuses; the fact that the guy tried to make both of them verifies that at least one has to be false, if not both. The "excuses" in the scenario I gave above and the ones Alito made throughout the hearings are not competitive and do not disqualify each other from the possibility that they are true.
1.12.2006 10:06pm
Moral Hazard (mail):

and he is only now being foiled by the diligence of the Kennedy staffers.

Given the contents (or lack therof) of Rusher's CAP files I would say it was Kennedy who was foiled by the diligence of the Kennedy staffers.
1.12.2006 10:09pm
David Matthews (mail):
DtI, I agree. I said so a few days ago myself (if you really care, you can click back through the myriad Alito posts here, but once you do, you won't find anything profound.) The point was basically that I don't believe that he "can't remember;" and the "I forgot" non-excuse is a particular burr under my saddle. I lost any respect I might ever have had for Hillary Clinton when this supposedly brilliant woman repeated the sentence several hundred times in a few hours' testimony before OIC. I wish that supposedly non-partisan nominees, especially Federal Court nominees, would ignore the advice foisted on them by their handlers. How easy it would have been for Judge Alito to say, "I had no recolllection of that, but now that you mention it, yes, I did belong to CAP, although I never did much in the organization. I put it down on an application because my credentials looked mighty thin in that area; luckily they hired me anyway. I don't know much about what they stood for; I do know they were conservative and supported ROTC, so I joined, and I put it on my Reagan Administration application."

How tough would that have been? Would it have torpedoed his nomination? Right now, most people would agree that he wasn't completely forthcoming in his testimony, and, except for the partisans, they would still say, "well, that's just how it's done."

There is nothing here that is remarkably different in Alito's testimony from most Senate testimony -- sadly. The Senators demagogue for 20 minutes out of the allotted 30, and the nominee dissembles for the remaining 10.

The fact that Alito followed the advice of his political sponsors disappoints me, but, given the fact that this is not exceptional (the last nominee from either party to thumb his nose at the handlers and venture off on his own was Robert Bork) does not disqualify Alito from the Court.
1.12.2006 10:17pm
Average Joe (mail):
The topic of this post is "The Pupose of the CAP Inquiry". Todd ended this post with the following excellent summation:

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.

Although I find Todd's reasoning convincing, I still think that this claim is provocative and an excellent topic for comments. Unfortunately, no one seems to be interested in commenting on it. In my opinion no one has meaningfully addressed his arguments, either for or against. Am I to assume that everyone agrees with Todd that "the primary purpose of Senator Kennedy's questioning was to engage in guilt-by-association"? Is everyone here convinced by Todd's arguments? Can no one add anything significant to these arguments?
1.12.2006 10:18pm
lralston (mail):
Defending the Indefensible:
I didn't get that you were joking and I ALMOST choked on my soup when you said "By the way, I am not a Democrat, and I have no partisan axe to grind".
1.12.2006 10:20pm
Defending the Indefensible:
Chris D:

How about: "There was a computer glitch that prevented me from knowing the case involved Vanguard after I neglected to put Vanguard on my recusal list, so then I ruled in favor of Vanguard, but when it was pointed out to me, although I had done nothing wrong and had no reason to recuse myself, I recused."
1.12.2006 10:22pm
Defending the Indefensible:
David:

I agree with you.
1.12.2006 10:23pm
Defending the Indefensible:
David:

Actually, I agreed with you up until the point where you said it didn't disqualify him. I think willful dishonesty does disqualify. "Just how things are done" does not cut it with me. That's logic that would justify anything.
1.12.2006 10:26pm
David Matthews (mail):
Joe:

Damn, Joe, you caught us. I think there was an earlier thread where this very question (and this very interesting question, as you say) was addressed by several fairly sharp people, pro and con. But on this one, seems all we did was jump feet first back into the CAP matters/CAP doesn't matter/Alito's a liar who secretly touted his racism/Alito's a hack who denied his involvement/Alito's a victim who honestly can't remember blather.

So, as to what Todd posits about Senator Kennedy's questioning, jeez, I don't know, Todd's pretty smart; I'm not going to argue with him. Although I don't know if guilt-by-association or proving-Alito's-a-suckAss-Weasel was the objective, I do think Kennedy's (and the Democrats') goal is simply to discredit Alito enough that when they get their chance to put some people on the Bench, they'll be able to reverse whatever the Bush courts do, without having to worry about respect for precedent (how much weight should stare decisis carry when the judges are right-wing racist sexist shills of corporate America and the neo-Cons?)
1.12.2006 10:39pm
Chris D (mail):
DtI:

Yeah, what about it? He didn't know Vanguard was involved, ruled in their favor, learned about it afterwards, and recused himself even though he hadn't done anything wrong just to be safe. None of those "excuses" are competitive, and there has been no factual challenge to the merits of any of them. The fallback position of "Well sure, he didn't actually do anything wrong, but he's acting like he did" just doesn't cut it. If he's lying, prove it. If that can't be proven, stop muttering about it.
1.12.2006 10:40pm
A.S.:
Does anybody else find this "Alito is dishonest" objection to be pretty much the lamest objection of all time? I don't think it escapes any thinking person that there is exactly zero evidence to support the allegation that he is dishonest. The objection basically boils down to "I think Alito is being dishonest, because, well, um, I do." I mean, is there really any other way to simplify "I think Alito is lying when he says he doesn't remember because I think he really does remember"?

Apparently these days the left doesn't need actual evidence to support an allegation any more. Ah, well, standards -- guess they've gone by the wayside with today's left wing.
1.12.2006 10:40pm
David Matthews (mail):
DtI, on my less cynical days, I agree with your disagreement with me. On my more cynical days, I sit around and post to websites like the VC. Your point is well taken.
1.12.2006 10:41pm
Moral Hazard (mail):

Apparently these days the left doesn't need actual evidence to support an allegation any more.

What do you mean? They said it was "obvious" he was being dishonest. What more evidence do you need that someone committed perjury?
1.12.2006 10:46pm
A.S.:
Good point, moral hazard. I withdraw my post!
1.12.2006 10:47pm
Nunzio (mail):
A.S.

I'm not from the left, but here's the evidence: Alito, at age 35, put down on an important job application that he was a member of two organizations, one of which was CAP. CAP's positions appear to be pretty well known to Princeton alums. Alito was not stupid at age 35; he would not put on a job application an organization whose views he wasn't familiar with, so he likely was familiar with many of CAP's positions, even if he didn't read any of the articles Kennedy was wasting time over.

Now, 20 years later, he claims he doesn't remember anything other than that CAP was in favor of keeping ROTC at Princeton.

Now, he may be telling the truth, but this isn't believable. You're certainly free to believe what he says is true, but to say there's no evidence that he's lying is not true. There's no direct evidence, but the circumstantial evidence is enough for many people to say he's being dishonest.

DTI thinks this dishonesty makes him unqualified; I don't b/c I don't think it's that out of the norm and, given his overall background and 15 years of pretty good work as a judge, he should be confirmed.
1.12.2006 10:50pm
David Matthews (mail):
"DTI thinks this dishonesty makes him unqualified; I don't b/c I don't think it's that out of the norm and, given his overall background and 15 years of pretty good work as a judge, he should be confirmed."

Well, that's why I happily pay my taxes. My two Senators are Coleman and Dayton (Minnesota); Coleman will vote "aye," and Dayton will vote "Nay," and together they will accurately reflect my opinion. Talk about representative government.

"Straddled on the fence like that, that's gotta be a bit painful in the groin" (from a movie I watched last week, but I can't remember which; might be "The Sacketts" or another adaptation of a Louis L'Amour book -- I was at my Dad's over the holidays.)
1.12.2006 11:03pm
o' connuh j.:
Haha Defending the indefensible just got owned by Chris D.

Learn what 'mutually exclusive' means before plying us with drivelous spiels about how Alito "used 3 excuses!!"
1.12.2006 11:45pm
KMAJ (mail):
David Matthews: "How easy it would have been for Judge Alito to say, "I had no recolllection of that, but now that you mention it, yes, I did belong to CAP, although I never did much in the organization. I put it down on an application because my credentials looked mighty thin in that area; luckily they hired me anyway. I don't know much about what they stood for; I do know they were conservative and supported ROTC, so I joined, and I put it on my Reagan Administration application."

I agree with you, this would have been the preferrable response, assuming all that you have included is true, but we all know about hindsight and even the best preparation sometimes falls short.

His actual testimony did not really miss the mark, except for lacking the prepared essence of your proposed response. He stated he joined because of support for the ROTC, that was one of CAP's main focuses. As he was not active, and all records seem to bear that out, it is very likely he would not remember much about it except the main reason he joined. If he wasn't active, nothing else would make much of an impression.

Everyone on here is entitled to their opinions, but I will trust the opinions of the people who know him and the professionals who have worked with him over any of the attempts to smear and discredit by those who have no clue about the man or any attorney who simply does not agree with his ruling on a few cases. Selective choice of cases is not an appropriate way to evaluate his full body of work. The fact that the support is nearly unanimous from all who have contact with him poersonally or professionally, from the left and the right, speaks far more to his fitness to sit on the SCOTUS than all the demagogic attempts to smear or impune.
1.13.2006 12:09am
Tom952 (mail):
Sen Judiciary Chariman Specter reported that the overnight review of CAP documents requested by Kennedy came up without evidence of Alito CAP activity, leaving the Alito-hater-posters here without credibility. Alito could not have been active in CAP without leaving a trace somewhere, so he was not active. So, it is quite plausable that he doesn't remember anything about being in CAP because there is nothing for him to remember.

During the Senate hearings, the Dems displayed pure partisanship, little intellect, and embarrassingly displayed complete incomprehension of the fact that a judicial nominee who publicly states a personal position on an issue would forever be regarded as biased and impartial, even if his subsequent judicial behavior were perfectly impartial. This mental block, forgivable in Kennedy due to a lifetime of alcohol abuse, prevented the Dems from crafting incisive queries that could have revealed, for example, Alito's analytical approach to issues and how he weighs competing factors in difficult decisions.

Given the fact that months of investigation into Alito's ample 15 years on the job yielded so little political fodder, the Dems simply decided to use the national TV exposure to chum the waters of their base constituency. No wonder they are losing.
1.13.2006 12:10am
Charlie (Colorado) (mail):

Joining CAP is not really analogous to subscribing to Time or Newsweek. It's more like joining the Democrats or the Republicans or the Wobblies or the John Birch Society: it doesn't mean one agrees with all the views of every member of the organization, but it suggests some sort of shared ideology.



So? (Actually, Dinesh D'Souza was the editor of the magazine and he said it was more ike subscribing to a magazine, but perhaps he's an interested party.) I used to subscribe to New Republic; we certainly shared some ideology. I also sometimes think the people writing in NR are fools.

Merely reading a paragraph chosen to offend from some stary at some time doesn't provide you any evidence about what I think.
1.13.2006 12:10am
jahoulih:
Again, I don't think the analogy is apt. Alito wasn't listing his magazine subscriptions, he was describing his political affiliations. I see nothing wrong with asking him if he agrees with the views of CAP as expressed in its house organ.
1.13.2006 12:34am
Moral Hazard (mail):

There's no direct evidence, but the circumstantial evidence is enough for many people to say he's being dishonest.

Well, Your Honor. We've plenty of hearsay and conjecture. Those are kinds of evidence. - Lionel Hutz
1.13.2006 12:39am
SDOH:
An honest question:

Should Senators condition advice and consent on judicial philosophy, rather than only on judicial qualifications? To what extent should it be permissible or discouraged?
1.13.2006 12:52am
Diversity Hire:

I find political theater to be interesting...


Yeah, me too. God bless the distinguised Senator from Chappaquiddick and his rum-and-coke rhetoric! From his inability to read from prepared copy to his incapcity to finish a thought, he's a wonder. Still, he did what he could to craft an excuse to fillibuster. That's all this CAP and Vanguard nonsense is about.
1.13.2006 1:07am
Defending the Indefensible:
SDOH:

Something can be both permissible and discouraged, of course. I don't think that mere "judicial qualifications" are a sufficient basis for confirmation, if they were it would not be a matter for the Senate to consider at all, but a simple qualifications board or a statement by the ABA would suffice to ratify the President's selection.

Clearly there is also a reason for the Constitutional provision which places the advice and consent role in the Senate, to prevent him from appointing his personal friends and family, for instance, and it is an essential check upon the President's power to make appointments that will cement his authority against all branches of government. I definitely think discussions of Unitary Executive theory are properly considered. And as I've said before, I think questions of character are especially important when making a lifetime appointment.

But I do think the Senate goes too far (not impermissibly, but nonetheless ought to be discouraged) in trying to turn confirmations into a series of litmus tests on favored political or judicial outcomes. I suspect that the President does the same thing in vetting candidates, though outside of the camera spotlight. This is also unfortunate, and I think it is largely a consequence of ignoring the "advice" part of "advice and consent".
1.13.2006 1:09am
Defending the Indefensible:
DH:

Seriously, I can't believe he's doing a children's book, "My Senator and Me: A Dogs-Eye View of Washington, D.C." (with his Portuguese Water Dog as protagonist!)
1.13.2006 1:11am
Defending the Indefensible:
Oh, and his dog is named "Splash".
1.13.2006 1:13am
Kazinski:
If guilt by association is going to be standard fare for Supreme Court hearings, then I for one would urge Eugene to remove comments from the blog. I would feel terrible when Eugene is up for the Supreme Court or Orin is nominated for AG, to have my comments asserting broad article II powers, or other foolishness, used to scuttle the nominations. However farfetched that sounds I can garantee that 10 minutes after Stevens retires, one of Kennedy's staffers is going to be pouring over all the posts on this blog, comments too, in an effort to derail Prof. Volokh's nomination.

They better clean up the blogroll too, Glen Reynold's taste in T-shirts will raise questions that will make CAP look like a tea party.
1.13.2006 1:45am
Wince and Nod (mail) (www):
Andrew Napolitano was a board member of CAP. He hired Laura Ingraham to edit their magazine. Gee, I wanna join!

CAP was pro-ROTC, on a campus where the left had burned down the ROTC building, and against racial and gender quotas, the position of the Supreme Court! Based on this information, and the demonstrated example of the Democrats on the Judiciary Committess, may I conclude that Ted Kennedy is in favor of racial and gender quotas and thinks arsonists are heroes? Or would that be an unethical guilt by association argument?

The Democrats failed badly in their opposition research this time.

Yours,
Wince
1.13.2006 2:08am
Moral Hazard (mail):

The Democrats failed badly in their opposition research this time.

It wasn't really about derailing the nomination anyway. It was about throwing red meat to the leftists that make up the bulk of the activists for and campaign contributors to the Democratic party.
1.13.2006 2:54am
Colts41 (mail):
Todd:

If, as others have said earlier, Alito's service for 15 years on the 3d Circuit is what matters most, why do Republican Senators, when speaking about Bush judicial nominees, invariably say something like:

"Well, when Clinton nominated Ruth Bader Ginsberg -- the former general counsel of the Aaaa-Cccc-Llll-Uuuu [with those letters dripping out of their mouths as though its Al Qaeda] -- we approved her anyway."

What was the revelance of her position with the ACLU after her 15 or so years on the DC Circuit?

I don't see the CAP membership any differently. Sure, sure, Alito says he had, and the records confirm, no meaningful involvement per se.

But the point of the speaker (Kennedy, Cronyn, Graham, etc.), clearly, is to infer a point of view about the nominee based on his or her chosen associations.

Though I'll note one important difference between Alito and Ginsberg. She didn't forget (I assume) to list her ACLU job on her disclosure statement to the Senate Judiciary committee when nominated to the DC Circuit, as Alito did for CAP in 1990.

As an AUSA (hired by Alito successor in the NJ USAO), I routinely laid side by side a defendant's yearly financial statements in fraud cases to show he/she materially misrepresented their position by identifying material differences between them and, more important, the significance of th new or missing information. It's not any different in civil litigation when trying to convince the jury the opposing party holds a view about the facts contrary to their pretrial testimony by laying side by side past statements on a material issue and recent testimony.

Kennedy and others could have done a better job of framing the issue. Granted. Of course they're not trial lawyers (or even litigators).

But as someone who has no quarrel with Alito's nomination (loyalty to NJ and the USAO there being what it is), I also have no quarrel with the CAP issue having been raised.

I think, respectfully, you may have let your politics color your views of this.
1.13.2006 4:15am
KMAJ (mail):
Colts41,

With all due respect, the Alito/CAP and Ginsberg/ACLU analogy does not work. Ginsberg was very active in the ACLU, she had very little opposition, she was not smeared by innuendo in committee and was confirmed easily. It is not the similarities but the differences between how the republicans treated her and the democrats with Alito, specifically Kennedy and Schumer, is glaring, even with Ginsberg's extreme record of wanting the age of consent lowered to 12, legalizing polygamy, legalizing drugs and prostitution. And the democrats have the gall of trying to claim Alito is out of the mainstream ?
1.13.2006 5:59am
minnie:
How hard is this to understand, and why is there so much narrow partisanship about what should be commonly agreed?

DTI, you state it perfectly. Unfortunately, it is not only hard, but probably impossible, for essentially amoral people to understand the thinking of those who are unfailingly guided by principle.

To those for whom a person's integrity is the single most important qualification for any position, Alito is an unfortunate choice. Judge Alito spent his life networking in the pursuit of a position of power. It's not surprising that a bevy of judges with whom he worked would speak out in support of him. He's a careful person, imo, who had his eye on the prize from a very early age.

I do not support him for two reasons. One, I view his subtle dishonesty in the same light you do. Second, it's his sense of life which dismays me. I hope you saw the testimony of Mr. Goodwin Liu. I intitially thought Mr. Liu backed down when confronted by Sessions and others, but in his final summation as to why he did not ultimately support Alito, he was incredibly eloquent and moving. I thought his was by far the most poignant testimony of any of those who spoke during these hearings. I can't state it nearly as brilliantly as he did, but in essence, his point was that it's not only the resume qualifications, hard work, and mastery of the law that determines what type of judge a man will be. Most people who get into a position to be nominated for the SC share those pluses. It's the intangibles that speak to the inner essence of the person that determine in the end whether he will be a great judge with a reverence for individual human dignity who will rule wisely, fairly, and within the law.

DTI, you take a lot of abuse on this site, but that's only because you are such a principled person, always a rarity. Keep on truckin'.
1.13.2006 6:10am
Jaybo (mail):
I find it all amusing that these same Democratic senators berating Alito with veiled accusations for his membership in CAP in the mid 80's fawn over their dean in the senate Robert Byrd, the former Klan leader. Further, Byrd was a firm opponent of civil rights legislation in the 1960's. Now, he is beloved and forgiven for his prior association and acts as he "regrets" his prior stances on race.

Apparently, there is an informal statute of limitations on accusations by senators of 20 years. What a bunch of hypocritical grandstanders
1.13.2006 7:17am
Silly Undergrad (mail):
I think that Alito's clumsy responses to the only two controversies to crop up during this whole charade actually weigh in his favor. His responses to the Vangaurd issue hardly prove that he has integrity problems, rather they show that he is inexperienced in the game of politics. The guy is a law geek not a politician. He was being intensly scrutinized by the whole country and the Democrats were waiting like hungry wolves for him to trip up, no wonder he flubbed a little. The man had no reason to be dishonest, he didn't do anything wrong. The simplest explanation for his muddled response is not that he has "had his eye on the prize from a very early age" and somehow was able to hide his nefarious intentions from very smart people he has worked with over the last 15 years only to slip up right before he is able to grab that prize, but rather that he is not a political climber.

The CAP issue actually supports this. A life-long conservative republican who can only put the Federalist Society and CAP on his resume for a job in a conservative administration is clearly not that interested in the dark arts of politics. I mean c'mon, CAP and the Federalist Society, that's it !?

DtI, you hold up John Roberts as a model of integrity but did you forget that John Roberts said he was never a member of the Federalist Society but he was found to be listed as member of the Washington chapters steering committee? His response was, (paraphrasing)"I have no recollection of being a member". How come the accusations of dishonesty weren't quite as sharp as with Alito? My explanation: Roberts is a much smoother operator than Alito and handled the controversy better. Alito isn't more dishonest than Roberts just more nerdy.
1.13.2006 7:42am
Bob Bobstein (mail):
KMAJ, someone has been misinforming you about Ginsburg's selection. Ginsburg's name was floated by Republicans, as she was more a more centrist judge than Alito has been. The difference in treatment by the Senate is due to the difference in selection by the president-- unilateral (Alito) vs bipartisan (Ginsburg).

You have a fair fallback argument that Clinton consulted with the Senate more than Bush does only because Clinton faced more opposition members in the Senate than Bush, rather than because Dems are inherently more conciliatory and collegial than the GOP.


Sen. Orrin G. Hatch (R-Utah) suggested Ginsburg -- along with Clinton's second pick, Stephen G. Breyer -- to the president. "From my perspective, they were far better than the other likely candidates from a liberal Democratic administration," Hatch writes.

According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.

By contrast, University of Chicago law professor Cass Sunstein found that Alito, in the overwhelming majority of cases in which he dissented, took a more conservative stance than his colleagues.
1.13.2006 7:48am
Silly Undergrad (mail):
By the way, does anyone else find it ironic that the man hounding Alito the most over ethics and integrity issues, i.e. Kennedy, didn't call the police for eight hours after accidently drowning a woman ? It's so twisted it's funny.
1.13.2006 7:51am
Stephen M (Ethesis) (www):
BTW, here is what Liu had to say about Roberts:

short description
1.13.2006 8:22am
Moral Hazard (mail):

BTW, here is what Liu had to say about Roberts

I got a kick out the skewering the commenters gave his argument style. It's no wonder that after watching his testimony that Minnie would come up with this tripe.

It's the intangibles that speak to the inner essence of the person that determine in the end whether he will be a great judge with a reverence for individual human dignity who will rule wisely, fairly, and within the law.

Certainly there aren't any serious arguments there.
1.13.2006 8:57am
Kazinski:
Bob Bobstein:

The difference in treatment by the Senate is due to the difference in selection by the president-- unilateral (Alito) vs bipartisan (Ginsburg).


The reasons that Ginsburg was bipartisan is that it had to be, the Republicans controlled the Senate. Which is the way things should be, the more elections a party wins, the more power it gets. The Republicans have been winning a lot of elections in the past 12 years. Bush's first choice Meirs was on Reid's list of acceptable nominee's, but the Republican rank and file rose up because they couldn't see the point of working so hard to win all those elections if they couldn't have a nominee that reflected the views of those who voted for the winning candidates.

A second reason is that the Republicans are more willing to be bipartisan. When it comes to Pork, the Democrats are willing to be bipartisan, but on little else.
1.13.2006 9:18am
o' connuh j.:
Minnie babbles: "... I view his subtle dishonesty in the same light you do."

From "obvious" dishonesty to subtle dishonesty !! Alito's critics continue to vacillate!!

Notice how DtI keeps schtum on the Vanguard issue after Chris D. exposes the logic mangling. Perhaps you should too :)
1.13.2006 9:24am
M.A. (mail):
The reasons that Ginsburg was bipartisan is that it had to be, the Republicans controlled the Senate.


No; the Democrats controlled the Senate at the time the choice was made. Clinton picked her on the advice of the minority leader.

The most disgusting thing about the current Republicans and their supporters is that they don't merely want to do things their way, they want to humiliate and marginalize the 49% of the country that didn't vote for them. Clinton's bipartisanship (even in the two years when he had all three branches of government) vs. Bush/Rove's hyper-partisanship (deliberately dividing the country for political gain, because they put party above country) is the clearest contrast.
1.13.2006 9:37am
David Matthews (mail):
"The reasons that Ginsburg was bipartisan is that it had to be, the Republicans controlled the Senate."

Actually, no. When she was confirmed, the Democrats controlled the Senate. (It was 1993).

http://www.oyez.org/oyez/resource/legal_entity/107/
1.13.2006 9:44am
ed.:
CAP was pro-ROTC, on a campus where the left had burned down the ROTC building, and against racial and gender quotas, the position of the Supreme Court!


This, and comments like it, reflect a fundamental misunderstanding of the nature of CAP.

The quotas that CAP was against were most definitively not affirmative-action type quotas ("we must admit at least X number of a particular group"), but rather the type of quotas, more familiar from a generation or two back, used to limit the number of a particular group (e.g., the Jewish quotas that any number of colleges used until the 60s). In this case, Princeton, having decided to go co-ed, aimed to have as much as 40% women in the class. CAP was most certainly not saying that this quota was illegitimate because it was an affirmative-action style quota, and that admissions at Princeton should be gender-blind: it simply didn't want that many women at Princeton. Princeton at this point was still restricting the influx of women, it just wasn't, in CAP's view, restricting it enough.

Not exactly "the position of the Supreme Court".
1.13.2006 9:48am
SDOH:

The reasons that Ginsburg was bipartisan is that it had to be, the Republicans controlled the Senate. Which is the way things should be, the more elections a party wins, the more power it gets.

Isn't this the real question? To what extent should should confirmation be conditioned on judicial philosophy, rather than simply qualifications?

DTI makes good a good point with respect to "litmus tests"; but I think I only agree because I don't think that a single-issue "litmus test" is a good indicator of how a judge may generally rule over the course of 20 years.

If the Executive can select people on the basis of political philosophy, why shouldn't the Senate be allowed to rule people out, based on the same criteria? The power of nomination is a large agenda-setting power. Why shouldn't "advice and consent" be a large agenda-rejecting power?

(and I'm not asking a question of "that's how it's always been", but rather how we should operate in the future; especially considering the power of parties to bypass institutional checks and balances.)

(and, just to note, "winning elections" isn't perfectly correlated here; a party may have control of the Presidency and the Senate, but may have been overwhelmingly rejected in the House and States.)
1.13.2006 9:59am
SDOH:
Why, why should "parties" have power, rather than institutions?
1.13.2006 10:05am
SDOH:
(Day 2 of problems with typos)
1.13.2006 10:06am
John Lederer (mail):
"D'Souza worked for CAP from 1983 to 1985, editing CAP's controversial Prospect magazine. He said a number of the Democratic attacks on Samuel Alito were based on falsehoods.

First off, D'Souza says, one of the two stories from Prospect that Sen. Ted Kennedy, D-MA, read this week at the confirmation hearings was intended as a satire.

The 1983 essay "In Defense of Elitism" by Harry Crocker III included this line, read dramatically by Kennedy: "People nowadays just don't seem to know their place. Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic..."

The essay may not have been funny, D'Souza acknowledges, but Kennedy read from it as if it had been serious instead of an attempt at humor.

"I think left-wing groups have been feeding Senator Kennedy snippets and he has been mindlessly reciting them," D'Souza said. "It was a satire." "

http://blogs.abcnews.com/downanddirty/2006/01/cap_smear.html


Sigh.
1.13.2006 10:43am
Kazinski:
I stand corrected, the Senate was Democratic when Ginsburg was nominated. She was confirmed 97-3, despite the fact that a good case could have been made that Ginsburg supported legalizing polygamy and lowering the age of consent to 12 (as detailed a few months ago on this blog).

You can blame Bush and Rove for some of the devisiveness, but the Democrats have been even more divisive, trying to block the majority despite losing ground in every single national election since 1998. The divisiveness has actually been good for the Republicans, if the Democrats hadn't filibustered the judges Tom Daschle would still be in the Senate. Max Cleland would still be in the Senate if he had been more bipartison.
1.13.2006 11:32am
Wince and Nod (mail) (www):
ed,

Princeton at this point was still restricting the influx of women, it just wasn't, in CAP's view, restricting it enough.

I don't think this is at all true based on what I've heard from members of CAP.

Yours,
Wince
1.13.2006 12:04pm
Moral Hazard (mail):

I don't think this is at all true based on what I've heard from members of CAP.

I'm sure Ed will be happy to provide evidence to back up his claim.
1.13.2006 12:47pm
Observer (mail):
I could respect those Senators who, having read a representative sampling of Judge Alito's decisons, conclude that he is too conservative for their personal taste and so vote against his confirmation. That would be honest.

However, that is not what they are doing. Apparently fearing that they can't arouse the public with charges that Alito is "too conservative," they are trying to slime him with spurious charges of racism and sexism. This is fundamentally dishonest and I am frankly surprised that anyone who participates on this website thinks that this kind of behavior is in any sense appropriate.
1.13.2006 1:03pm
Aultimer:
Alito has clearly stated that he doesn't agree with the offensive CAP stuff. Partisans can bicker about who bears the burden of proving the sincerity of that purported disagreement, but this libertarian-leaning registered Republican would've liked Alito to color the disagreement without prompting.

Something like, "For goodness sakes, in the last X years I've hired clerks, male and female with diverse ethnicity, socio-economic backgrounds and veteran status." Assuming that's true, anyway.
1.13.2006 1:20pm
Adam (mail):
CAP was pro-ROTC, on a campus where the left had burned down the ROTC building, and against racial and gender quotas, the position of the Supreme Court! Based


ROTC was ordered off the Princeton campus in 1971 and allowed to return in 1972, by the time Alito graduated. It was only mentioned once in Prospect in the two years prior to Alito's resume-mention -- and mentioned in the context of "thank goodness students are avidly joining".

Also, the ROTC Building at Princeton was not "burned down". You may have it confused with other schools.
1.13.2006 1:29pm
Moral Hazard (mail):

Also, the ROTC Building at Princeton was not "burned down". You may have it confused with other schools.

You're right, it was only fire-bombed, not "burned down." Of course since the ROTC was then kicked off campus (can you say appeasement?) it didn't make much difference.

But surely he wouldn't support an organization that advocated ROTC at Princeton after it was resolved. After all, since Roe V Wade no one joins pro-abortion groups anymore.
1.13.2006 2:36pm
Mark Buehner (mail) (www):
KMAJ, someone has been misinforming you about Ginsburg's selection. Ginsburg's name was floated by Republicans, as she was more a more centrist judge than Alito has been. The difference in treatment by the Senate is due to the difference in selection by the president-- unilateral (Alito) vs bipartisan (Ginsburg).

Thats one way to interpret the situation. The other is that the Republicans as a minority party under a Democratic president were much more accommodating to presidential perogative in selecting justices. So long as she was qualified and not a total wack job the president would get his choice. Contrast that to this democratic minority. The Republicans certainly did not present a litmus test to Clintons judges for instance. For the situation to be parallel, Republicans would have had to have sworn to filibuster any justice who refused to overturn Roe v Wade or claimed to be pro-choice. Clinton was able to consult the Republicans because Republicans were willing to accomidate liberal choices. Democrats however are unwilling to allow conservative choices. I challenge anyone to show us how Ginsberg is or was a more mainstream judge than Alito.
1.13.2006 3:12pm
Michael B (mail):
Have yet to see any evidence whatsoever that refutes this. Zero, nada, nil, zil. It may exist; have not seen it.
1.13.2006 3:23pm
ed.:

I'm sure Ed will be happy to provide evidence to back up his claim.


More than happy. The fact that women, at the onset of coeducation at Princeton, were capped, rather than given preferences, is really not a reasonably disputed claim, despite what some CAP members may have told Wince.

Afraid I can't find any publicly-available online evidence for it, but Jerome Karabel's The Chosen documents the practices in question (with detailed references to primary materials, since a liberal author like Karabel presumably isn't to be trusted).

Also, the NY Times of March 3, 1974 documents CAP's negative reaction to the decision of the Princeton Board of Trustees to eliminate gender quotas (i.e., caps) and make admissions gender-blind, thus abrogating the understanding, when Princeton went co-ed in 1969, that 800 spots would be reserved for men.

This really isn't something seriously in dispute. Arguably, post-1974 CAP may have been objecting to affirmative action-style quotas for women (although I haven't seen any evidence of their existence--care to provide evidence to back up that claim?), but before then they could hardly be objecting to something that didn't exist, could they? Their objective, on the contrary, was affirmative action-style quotas for men.
1.13.2006 4:11pm
Thorley Winston (mail) (www):
This really isn't something seriously in dispute. Arguably, post-1974 CAP may have been objecting to affirmative action-style quotas for women (although I haven't seen any evidence of their existence--care to provide evidence to back up that claim?), but before then they could hardly be objecting to something that didn't exist, could they? Their objective, on the contrary, was affirmative action-style quotas for men.


IIRC they were pushing for having a minimum number of spots reserved for the children of alumni which could just as easily be a daughter as a son.
1.13.2006 6:27pm
bmac:
For pity's sake if the man was dishonest he would have had a much better answer than "I don't recall being active in that organization". He put it on an application "as code words" to the Reagan administration. Right. After all it's common knowledge that that administration was racist and they needed those clues that you were too. And after that he hid it so well in his four to five thousand cases that he presided over. And the expansion of minority hire underneath him on the federal bench was a smoke screen. And he recused himself from thousands of cases but missed a handful of cases one including Vanguard to vastly enrich himself. And he was so sneaky he had a great excuse all ready there too! He didn't know exactly how it got through. Clever. Silly Undergrad had it right. This man is a judge, not a political animal. The in depth investigation of his cases, credentials and colleagues show him to be a man of the highest integrity, very qualified and deeply respected by his peers. I have no problem if you object to him because of his judicial philosophy. He's a conservative and if you don't want another conservative on the court that's a reasonable stand. But to get your wish you need to elect a President with a similar philosophy to your own and let him choose his nominee. Isn't it about time to try to stem the character assassinations of decent people because we dislike their politics? Please?
1.14.2006 3:18am
minnie:
Subtle dishonesty speaks to the manner in which the deviations from truth are presented. Obvious dishonesty speaks to how discernable the dishonesty is by others. They are not mutually exclusive concepts.

Also, another point I observed. Alito is praised for his even "judicial" temperment. In one of the later exchanges with Kennedy, Alito can be seen to be absolutely seething.
He speaks with barely controlled rage, his face contorted with hatred. I found it scary.

Roberts never once displayed anything like that because Roberts is, in fact, a good hearted, essentially cheerful person. Clever to the max, but honest and of good will.
1.14.2006 6:03am
minnie:
o' connuh j. writes Haha Defending the indefensible just got owned by Chris D.

Hee Haw, hardly. I'd point out all your errors in logic, o'connuh, but someone once told me, "Never pick a fight with a midget. You'll both land up looking ridiculous."

If the (tiny) shoe fits, wear it.
1.14.2006 6:17am
o' connuh j.:
He's seething alright - seething with contempt for his intellectual and moral inferiors. That's what he feels when he looks straight at you on cspan!

"Hee Haw, hardly. I'd point out all your errors in logic, o'connuh, but..."

In other words, you have never studied the subject, know next to nothing about it, would like to engage on the logical merits, but can't.

Posturing is the next best thing for minnie.

Next!
1.15.2006 4:29am