Confirmation Report

Sam's Club: Why Alito's Membership in CAP Matters
The law, lawyers, and the court.
Jan. 11 2006 7:39 PM

Confirmation Report

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Just spit it out 
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Just spit it out

Whatever the little dust-up was that played out this morning between Sens. Ted Kennedy, D-Mass., and Arlen Specter, R-Pa., it had absolutely nothing to do with Princeton, or its Concerned Alumni, or even Sam Alito.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Kennedy starts off by reading some nasty, mean-spirited, racist, homophobic drivel from Prospect—the magazine published by the mean-spirited, racist Concerned Alumni of Princeton, a group proud to once claim Judge Sam Alito as a member. The judge cringes as the leonine senator spits out bullet after bullet. Then Kennedy turns his great spigot of fury on Arlen Specter—who had seemingly ignored his December letter demanding that all CAP-related documents be subpoenaed. There's a Punch-and-Judy scuffle over whether Specter got the letter. Then the senator from Massachusetts intones: "I renew my request, Senator. And if I'm going to be denied, then I'd appeal the decision of the chair. I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination."

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Specter will not be lectured: "I take umbrage at your telling me what I received. I don't mind your telling me what you mailed. But there's a big difference between what's mailed and what's received. And you know that."

Kennedy renews his request for executive sessions and special votes: "I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution."

It spirals ever downward: "I'm tough!" "I'm bad!" "I'll cut you, man!" And as the two senators trade threats, expressions of feigned outrage, and promises of dire consequences, the real problem with this whole confirmation process becomes clear: It's a battle of the world's largest egos. There is only one product they're trying to move in this four-day infomercial and that product is senators. Senators! Get your red-hot senators! This proceeding is nothing more than Senate QVC. People of Pennsylvania: Order an Arlen Specter and you'll have softer, smoother skin. Order a Ted Kennedy and equal justice under the law can be yours in minutes! Hurry and order a Tom Coburn in the next 15 minutes, and we'll throw in a free stethoscope, Bible, and glow-in-the-dark ear thermometer.

This is no more a judicial confirmation hearing than O.J. Simpson's was a criminal trial.

What makes this process so ill-suited for testing the qualifications of a judge is that judges, unlike United States senators, have nothing to sell. They are lonely, mousy, bookish creatures to begin with, and, at least according the Republican theory of judging, their personal views and past statements are irrelevant, anyhow. The gospel here in the Hart Building is that there are only two possible ways to decide even the most complex cases: Judges either "apply the law" or they "make things up."

Since Alito is evidently the sort who "applies the law," he doesn't have to sell anything this week. All he has to do is show us how he applies law. He's like the pretty blond girl charged with endlessly demonstrating the vacuum. Over and over he demonstrates the case law: This is the precedent/statute/test he'd use.

But that's what makes today's fireworks over his membership in CAP—likely the only fireworks we'll see this week—so perfectly ironic: Bragging in a 1985 job application for a high-level gig in the Reagan administration about his membership in Concerned Alumni of Princeton is about the only thing Sam Alito ever did exclusively to make a sale.

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.

But under Biden's argument there lies a more pointed one: Alito is a proud lifelong conservative. But he's not a lifelong racist and misogynist. You can understand why Sam Alito might have given his heart to the Federalist Society. But, really, why CAP?

Time magazine suggests that Alito swaggered about CAP so late in the game—so long after it was denounced by prominent Americans and so very, very long after his alleged concern about Princeton's treatment of ROTC on campus—because he needed to build up his tough guy cred as a true believer in the Reagan Revolution. He needed to sell them on Sam Alito as Angry White Guy.

But as trivial as the screaming over CAP may seem, it matters. Not because it proves the nominee hates women or minorities or criminal defendants or immigrants. That's a caricature of a conservative judge. It matters because CAP was code in 1985 for all the things Alito refused to write on his application and refuses to discuss before the committee now. Instead of being forthright about his convictions, Alito hides behind the fiction that there is only one way to decide cases. Instead of proudly bearing witness—as he has done throughout his career—to his opposition to the Warren Court's rulings, his disdain for the reasoning in Roe, his preference for states' rights, strong police powers, and "traditional values"—he pretends that all those amassed thoughts and ideas are irrelevant. He pretends—as do his supporters in the GOP—that every one of those thoughts has absolutely no bearing on how he decides cases. And that is just not true.

I recognize why Judge Alito can't talk openly about his convictions. I keep waiting in vain for that brave conversation to take place. I suppose I understand why he cannot stand before this committee and say, "Yes, I believe that most employment discrimination claims are probably bogus; that most cops are honest and that most death-row prisoners deserve to die. Period." That would require a hell of a sales job. But if we cannot have an honest conversation about Alito's legal views and preferences, his coded messages become doubly important.

It's heartbreaking to watch Alito's face when he's pressed and pressed on CAP's vile statements. It's even worse to watch his wife. When Alito says he "deplores" their ideas, his voice cracks, and it's easy to believe him.

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."

Senate Democrats are pummeling Alito with the racist Princeton group because it symbolizes a parody of his beliefs. They know it's a parody. They want to know why it's a parody he so proudly claimed as his own in 1985. If he was just closing the deal with the Reagan administration, he should tell us. If it's code for what he's still selling today, we have a right to know.

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