JURIST Guest Columnist Sherrilyn Ifill of the University of Maryland School of Law says that on the third day of Supreme Court confirmation hearings for Judge Samuel Alito his student membership in a conservative Princeton organization took center stage as emotions ran high and tempers flared...
Many commentators (including me in a previous JURIST op-ed) predicted that Alito's identification of his involvement in CAP in his 1985 job application for a promotion in the Reagan Administration was among the most troubling things in his record. Combined with positions he'd taken in the Reagan Administration seeking to restrict both voluntary and court-imposed affirmative action remedies, his questioning of Warren Court decisions and his record on the bench of pretty consistently ruling against victims in race discrimination cases, Judge Alito's involvement in CAP required some explanation.
By now we all know that Judge Alito's answers to the questions about CAP have been weak. He's repeated over and over that he just doesn't remember why he joined the organization, nor does he remember ever attending a meeting of CAP. He does remember his concern that Princeton had, when Alito was a student and a member of the ROTC, kicked the ROTC off campus. The ROTC had been well restored to the campus by 1985, but Alito insists that the ROTC issue is the only one he can imagine could explain his involvement in CAP.
Yesterday Sen. Edward Kennedy made it clear to Judge Alito that in Kennedy's view, the nominee's answers about CAP "just don't add up." The Senator also read statements written by prominent members of CAP statements expressing hideously racist and homophobic views. Judge Alito strongly disavowed any endorsement of the statements written by the CAP members. Kennedy reminded Committee Chair Sen. Arlen Specter, that Kennedy had sent a request on December 22nd asking Specter to subpoena the CAP records now held in the Library of Congress. Kennedy pressed Specter to move the Committee to Executive Session in order to vote on whether to issue the subpoena. Angry at Kennedy's tone and Kennedy's threat to hold up the Committee proceedings until he received a ruling on the subpoena request, Specter sharply rebuked Kennedy. Specter insisted that he had never received Kennedy's letter, and scolded: "the fact that you sent it doesn't mean I received it."
Huh? It was an amazing moment for the rest of us out here in America who live at the mercy of the postal service. We just assumed that mail traveling in the same building of a branch of our government that has its own post office would make it to its destination in two weeks. But apparently not. To be honest, I first heard about Kennedy's letter to Specter seeking the subpoena a couple of weeks ago from a Washington Post article, so it was kind of an alarming moment when Specter insisted that today was the first time he'd heard about the subpoena request for CAP documents. In any case, Specter dressed down Sen. Kennedy, announcing, "I'm the Chairman, and I'm not gonna let you run this Committee." Specter agreed to consider Kennedy's request, but made it clear that he thought that Kennedy was out of line. Kennedy seemed suddenly mollified, and the hearing proceeded.
About an hour later, a somewhat mollified Specter announced that the records were being made available (no subpoena needed). Turns out that Specter's office had received the letter, but it hadn't been noted in the Committee's mail log book or something like that. But Sen. Specter insisted that Sen. Kennedy should have mentioned the subpoena request to Specter directly, perhaps during the Senators' workouts in the Senate gym. Kennedy confessed dryly that he hadn't visited the gym since before Christmas. Too much information, fellas. In any case, even as we speak, Sen. Kennedy's staffers are wading through CAP documents looking for information about when Alito joined the organization, and whether he was more involved than the nominee now recalls.
Questions about CAP created the other highly dramatic moment of the day. Under friendly and rhetorical questioning by South Carolina Sen. Lindsay Graham, Judge Alito insisted that he was not a bigot. Overcome by Judge Alito's impassioned response to what I'm sure she regarded as an accumulation of attacks on her husband, Mrs. Alito - Martha-Ann Bomgardner - was suddenly overcome by tears and left the hearing room. She returned later, composed. [Good grief! Imagine how Virginia Lamp (Clarence Thomas' wife) felt at the hearings regarding Anita Hill! I don't remember Lamp getting the vapors and fleeing the hearing room!] To be fair, it was a long day. By the end, Judge Alito himself sounded shaky, with exhaustion and exasperation, when New York Sen. Charles Schumer grilled him again about CAP, and tried to pin the nominee down on why he wouldn't concede that Roe v. Wade is "settled law."
Schumer's questioning in regard to the latter was pretty skillful. Judge Alito had over the course of the day conceded that the principle of one-person, one vote of Reynolds v. Sims, of marital privacy in Griswold v. Connecticut, of Congress' power under the commerce clause in a series of cases, are "settled law." Sen. Schumer asked why Judge Alito wouldn't use those same words for the Roe case. Alito answered that he didn't want to say the same about Roe, because it presents an issue that may come before him on the Court. Schumer was clearly unconvinced, but Judge Alito successfully carved out a rationale for why he responded to questions about different cases differently.
Wednesday was originally intended to be the last day that the nominee would be in the hot seat, but there will be another round Thursday. At least some Democrats want to ask more questions. No doubt, Republicans will want to do the same. And depending on what the CAP documents reveal, today could provide some additional drama, and more importantly some more satisfactory answers as to why Judge Alito joined that offensive organization and proudly identified himself as a member in 1985.
Sherrilyn Ifill is a civil rights lawyer and law professor at the University of Maryland School of Law