January 08, 2006

Senator Kennedy on Alito's Credibility Problem

In an editorial column appearing in yesterday's Washington Post, Senator Edward Kennedy laid out five areas where Supreme Court nominee Samuel Alito allegedly has a "credibility problem."

He begins with a myth commonly propagated by the liberal Democratic Intelligentsia: "Every Supreme Court nominee bears a heavy burden to demonstrate that he or she is committed to the constitutional principles that have been vital in advancing fairness, decency and equal opportunity in our society." If there is to be comity between the three co-equal branches of government, the burden is not on the nominee, but rather on the individual Senators to build a case for rejecting the nominee. In any event, this "burden" is an unworkable standard. The constitutional principles that would be considered fair, decent, and advancing "equal opportunity" would naturally depend on every Senator's ideological perspective.

According to Kennedy, the Alito Problem Areas are
1) His 1985 job application for a position with then-Attorney General Ed Meese;
2) His 1985 membership in "Concerned Alumni of Princeton" (CAP);
3) Failure to recuse himself in the Vanguard case;
4) His pledge to be absolutely impartial where the government is concerned; and
5) His promise to leave his personal beliefs behind when he became a judge.

Only the Concerned Alumni of Princeton situation really presents a problem for Alito. The noise over the 1985 job application represents liberal Democratic ideology rather than an ethics issue. The White House and Alito botched the handling of the Vanguard situation, making Alito appear disingenuous. However, it does not appear that Alito stood to gain from failing to recuse himself. As for Alito's impartiality and leaving his personal beliefs behind, his fellow jurists have already come forward to settle that score.

However, Alito will need to explain his relationship, if any, with the CAP organization. As Kennedy points out, those critical of CAP back in the mid-1970s included future Senate Majority Leader Bill Frist, who joined a written declaration contending that CAP presented a "distorted and hostile" view of the university. The Frist position provides a benchmark for labeling Alito "outside the mainstream."

An item not widely reported in the mainstream press (which could cause it to be splashed on the front pages during the hearings) , is that (according to Drudge Report) an article written by the editor of the CAP publication Prospect, Frederick Foote, stated: “The facts show that, for whatever reasons, whites today are more intelligent than blacks.” Obviously that statement must be examined in context, but by itself it looks like a nasty racist observation. Was this a typical viewpoint of CAP members? Three years after the article, Alito touted his CAP membership right alongside the Federalist Society in his job application letter.

To the extent that Democrats try to smear Alito using guilt-by-association tactics, they should be admonished. It may be that CAP is being unfairly characterized. But to the extent that some of the organization's members used rhetoric that nonideological Senators would see as troublesome, Alito will need to explain whether he shared the views of those individuals. Surely Senator Frist will be interested in Alito's answers. The Republicans' job will be to keep a tight rein on desperate Democrats.

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