Published January 12, 2006
For the second consecutive day of questioning in his weeklong confirmation hearing, Supreme Court nominee Samuel Alito calmly and skillfully dodged one semantic sand trap after another.
But deep down inside, the unfailingly polite witness was probably beating himself up for an item he included in a job application more than two decades ago.
In one of several interrogations on Wednesday, Sen. Edward Kennedy, D-Mass., demanded to know if Alito had read a 1983 essay stating: "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 physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."
The essay, entitled "In Defense of Elitism," was printed in Prospect, a magazine published by a now-defunct alumni organization to which Alito wrote he had once belonged.
In 1985, the then-assistant to the solicitor general composed a memorandum requesting promotion in which he listed his membership in the Concerned Alumni of Princeton as proof he had the criteria to move up in the Reagan administration. CAP, which disbanded in 1987, was formed in 1972 in response to changes in Princeton University's admissions and campus activities.
The venerable Ivy League institution had gone fully co-educational just three years earlier, and the number of female and minority students was growing. A group of unhappy conservative alumni feared the admissions policy would lower the quality of students accepted.
"It was a traditional, conservative mainstream organization, the purpose of which was to give alumni of Princeton a voice in a very, very liberal university administration, and to make sure that R-O-T-C, Reserve Officers Training Corps…would come back to Princeton and stay there," said FOX News legal analyst Judge Andrew Napolitano, a former board member of CAP.
Alito, who graduated in 1972, repeatedly told the Senate Judiciary Committee that he could not remember ever signing up with CAP, and said the only reason he would have joined was because of his participation in ROTC. Princeton, like many American universities at the time, had grown hostile toward the military's presence on campus amid turmoil stemming from the Vietnam War. The university's ROTC offices were firebombed during Alito's senior year, and he was forced to finish training at another school.
Alito denied to the senators that he knew anything about the "anti-women and anti-black" leanings of CAP's leadership and denounced such thinking.
"I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly," Alito responded to questioning.
"I disagree with all of that. I would never endorse it. I never have endorsed it. Had I thought that that's what this organization stood for I would never associate myself with it in any way," Alito told Kennedy after the senator read aloud excerpts from the 1983 essay, further defending himself by reminding Kennedy of his humble background as the son of immigrants.
He added that he purposely avoided affiliation with Princeton's infamous "eating clubs," which have an elitist reputation and did not admit women during Alito's undergraduate years.
"I was not the son of an alumnus. I was not a member of an eating club. I was not a member of an eating facility that was selective. I was not a member of an all-male eating facility. And I would not have identified with any of that," Alito said.
Sen. Lindsey Graham, R-S.C., late in the day, listed some of those he knew to be past members of the "selective eating societies" — Defense Secretary Donald Rumsfeld, former President Woodrow Wilson, Iowa Republican Rep. Jim Leach, Indiana Gov. Mitch Daniels and former Sen. Claiborne Pell, D-R.I.
The 55-year-old 3rd Circuit Court of Appeals judge also stated clearly that he believed Brown v. Board of Education, the 1954 Supreme Court ruling that outlawed segregation in public schools, "was one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done."
Alito's backing of Brown ought to be welcome news for Democrats, since it, alongside the controversial Roe v. Wade abortion ruling, is often cited by legal scholars as having been wrongly decided despite a welcome outcome.
But Hilary Shelton, executive director of the NAACP's Washington bureau, was not convinced that Alito had sufficiently demonstrated sensitivity to the plight of minorities.
"We count on the Supreme Court to look at the law in the context of the realities of our day," Shelton said of Alito's very narrow approach in deciding discrimination cases. "That's why Brown v. Board of Education was decided the way that it was. We really need Supreme Court justices that have that skill and ability, and he has not demonstrated he has either."
The fact remains that Alito has been unable to explain his membership in CAP, and for those who fear he is more insensitive to minorities and women than Justice Sandra Day O'Connor, the moderate conservative he is tapped to replace, Alito's disavowals offer no comfort.
"Why would you put on a job application your membership in an organization that you know so little about?" Shelton asked. "I get the impression that is he is fudging [his response]. He believed it was helpful to him at one point in his career advancement, but not for his present career advancement."
Leonard Gross, co-author of "Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations," was similarly incredulous.
"He remembers everything else under the sun, including cases decided years and years ago," said Gross, a law professor at Southern Illinois University School of Law. "His explanation rings hollow."
Stephen Dujack, a Class of 1975 Princeton alum, said the most disturbing aspect of CAP was not its members' beliefs, but the methods they used to convey their ideas.
In 1984, Prospect published an editorial noting the mining accident death of a woman who successfully sued to get a mining company to hire her despite being a woman. It ended, "Sally Frank, take note."
Frank, a 1980 Princeton alumna, was at the time taking legal action to force all-male eating clubs on campus to admit women.
"Only yesterday [Alito] all but admitted he joined CAP in 1972 because of his concerns about R-O-T-C. Joining because of his protest of R-O-T-C’s treatment is a perfectly reasonable thing to do and I don't find any fault with that," Dujack said. "But that's not what CAP was about. It was about so many other things, and that included most emphatically opposition to women and minorities at Princeton."
Dujack was scheduled to testify about CAP before the Judiciary Committee this week, but was dropped from the Democrats' witness list late Friday after Sen. John Cornyn, R-Texas, circulated a 2003 Los Angeles Times editorial in which the environmentalist compared eating meat to the Holocaust. Dujack said he plans to submit written testimony to the committee.
Former CAP members and Prospect staffers deny their work was racist or sexist.
"There were some of the older alumni who would wax nostalgic about the 'old Princeton,' but there was nothing in the magazine that opposed co-education or women at Princeton," said Hoover Institution scholar Dinesh D'Souza. "The organization was critical of racial preferences, but that position was well within the mainstream of conservatism."
D'Souza, who attended Dartmouth University as an undergraduate, was hired by CAP's board to helm Prospect. In fact, several Prospect editors, including D'Souza and radio talk show host Laura Ingraham, had been hired after their work at the Dartmouth Review, then a breakaway independent conservative newspaper.
D'Souza, author of "The End of Racism," said he did not recall ever hearing of Alito during his time at Princeton. He said it was entirely possible that Alito never saw one copy of Prospect, even though he was likely on the magazine's mailing list.
"Alumni are inundated with stuff they get from college. This was one of a barrage of materials. It's quite possible he signed up or someone else signed him up," D'Souza said.
Senate Majority Leader Bill Frist, another Princeton graduate, participated in an alumni panel that in 1975 admonished CAP because it "presented a distorted, narrow and hostile view of the university that cannot help but have misinformed and even alarmed many alumni."
On Wednesday, Frist issued a statement urging senators not to confuse CAP with Alito's qualifications for the nation's highest bench.
"As a Princeton alumnus, I had concerns about CAP, but I have no concerns about Judge Alito's credibility, integrity and his commitment to protecting the equal rights of all Americans," Frist said. "This is another transparent attempt by the Democrats to wage an unfair smear campaign against an exceptionally qualified nominee."
But Dujack noted that the findings of the panel on which Frist participated made headlines, as did former New Jersey Sen. Bill Bradley's denouncement of the group to which he had once briefly been a member.
"What I don't understand was why he continued to be a member when Bill Bradley famously quits within a year of CAP's founding, and two years later Frist is co-author of a report that censures the organization," Dujack said. "He continues to be a member while the organization continues to conduct itself outrageously and the magazine prints racist and misogynistic material ... he had a long time in which to act and he didn't."
William Rusher, a founding member of CAP and retired publisher of the National Review, told his former magazine on Wednesday that "CAP was none of the things Senator Kennedy is smearing it as being: anti-black, etc. Since Alito apparently had next to no involvement with CAP, Kennedy is trying to give CAP the worst possible reputation in the hope that some of that will rub off on Judge Alito.
"I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all. ... I am surprised that Judge Alito's opponents are so desperate," Rusher told the Review.
As disturbing as some of the allegations surrounding CAP might be, they do not appear to be making inroads into Alito's chances of getting confirmed, note hearing observers.
"I don't know that he needs to do much more than he's doing, because he's probably got enough support. He figures he needs to run out the clock, and as long as he avoids making a really bad mistake, he'll be confirmed," Gross said.