Senator Kennedy is at it again

Yes, Senator Kennedy is at it again. Not content with destroying Judge Bork 20 years ago, Senator Kennedy, the same senator whose lifelong boorishness and feckless behavior brought such grief to his family and to the Kopechnes, has decided to savage the reputation of yet another good man, Judge Samuel A. Alito. I don’t know how anyone can keep a straight face as this man denigrates another person.

In case you have forgotten, while Judge Bork’s garbage was being stolen and analyzed by Kennedy operatives (a new federal law was later passed forbidding this vile practice), Senator Kennedy said the following about Judge Bork within hours of his nomination to the Supreme Court,
"Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens of whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy."

Now Senator Kennedy’s staff has written a new attack for him to wage on another decent and learned man who has been nominated to the Supreme Court and earned the highest recommendation of the ABA, Judge Alito. Here is Senator Kennedy’s attack piece followed by an analysis that shreds it.

Alito's Credibility Problem
By Edward M. Kennedy
Saturday, January 7, 2006; A17
The Washington Post

“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. As Judge Samuel Alito approaches his confirmation hearings next week, the more we learn about him, the more questions we have about the credibility of his assurances to us.
Consider these five areas:

1. 1985 job application : Alito was 35 when he applied for an important political position with Attorney General Ed Meese during the Reagan administration. Alito sought to demonstrate his "philosophical commitment" to Meese's legal outlook. He wrote that the 1964 Goldwater presidential campaign had been his original political inspiration, even though he was only 14 at the time. His views on the law, he said, were inspired by his "deep disagreement with Warren Court decisions." He strongly objected to "usurpation by the judiciary" of the powers of the president, and supported the "supremacy" of the elected branches over the judiciary. Not surprisingly, Alito got the job.

The views expressed there raise serious concerns about his ability to interpret the Constitution with a fair and open mind. When this embarrassing document came to light, he faced a difficult decision on whether to defend his 1985 views or walk away from them. When I and others met him a short time later, he appeared to be renouncing them -- "I was just a 35-year-old seeking a job," he told me. But now he's seeking another, far more important job. Is he saying that he did not really mean what he said then?

2. Membership in "Concerned Alumni of Princeton." In 1972, the year Alito graduated from Princeton University, a group of wealthy alumni formed Concerned Alumni of Princeton (CAP) to resist the growing influx of female, African American, Hispanic and even disabled students who were changing the face of Princeton "as you knew it." The university's most famous alumnus of the day, basketball star and later U.S. senator Bill Bradley, was invited into CAP initially but quickly found it "impossible to remain a member" because of CAP's "right-wing" views. A special committee of alumni, which included future Senate Majority Leader Bill Frist, accused CAP of presenting a "distorted and hostile" view of the university. Alito joined CAP about that time, despite its purposes and reputation, and remained a member through 1985, when he cited his CAP membership as another qualification to join the Meese inner circle.

In 1987, when he was nominated to be U.S. attorney for New Jersey, and in 1990, when he was nominated for the U.S. Court of Appeals for the 3rd Circuit, he did not mention his CAP membership to the Senate Judiciary Committee or to then-Sen. Bradley, who introduced him to the committee at the nomination hearing and endorsed him "100 percent." Bradley says today that had he known about Alito's long membership in CAP he would have had serious questions about it. Alito now says he can't remember anything at all about CAP.

3. Failure to recuse himself in the Vanguard case : In 1990, during the confirmation process on his nomination to the 3rd Circuit, Alito disclosed that his largest investment was in Vanguard mutual funds. To avoid possible conflicts of interest, he promised us that he would recuse himself from any case involving "the Vanguard companies." Vanguard continues to be on his recusal list, and his investments in Vanguard funds have risen from tens of thousands of dollars to hundreds of thousands. Nevertheless, in 2002 he failed to recuse himself when assigned to sit on a case in which three Vanguard companies were named parties and listed prominently on every brief and on his own pro-Vanguard opinion in the case. In this case, he and the White House have floated many excuses, but none provided any sensible explanation for his failure to keep his promise or follow his "personal practice" of recusing himself whenever there was any possible ethical question about his participation in a case.

4. His pledge to be absolutely impartial where the government is concerned : While chairing his confirmation hearings in 1990, I asked Alito how he could remain neutral in the cases that would come before him as a 3rd Circuit judge after his more than a dozen years of service representing the U.S. government. He stated that he would be "absolutely impartial" in all his cases. But in case after case involving the actions of U.S. marshals, IRS agents and other government officials, he has sided with the government and against the citizens, even when his fellow judges have told him he was off-base.

5. His promise to leave his personal beliefs behind when he became a judge : That's what he told me in 1990 he would do. But has he? In November 2000, at one of many Federalist Society meetings he spoke at, he indicated that he was a true believer when it came to the society's longstanding theory of an all-powerful executive. His endorsement of presidential power and his criticism of the Supreme Court for undermining it made clear that his philosophical commitment in 1985 still drives him.
Alito's words and record must credibly demonstrate that he understands and supports the role of the Supreme Court in upholding the progress we've made in guaranteeing that all Americans have an equal chance to take their rightful place in the nation's future. "Credibility" has rarely been an issue for Supreme Court nominees, but it is clearly a major issue for Alito.”

The truth of the matter:

Teddy Kennedy's Incredible Attack on Alito
Ed Whelan 01/07 01:22 PM
The National Review

After a thorough investigation, the American Bar Association unanimously gave Judge Alito its highest rating (“well qualified”) on its criteria of “integrity, professional competence and judicial temperament.” But that hasn’t stopped Teddy Kennedy from cobbling together a nasty hit piece on Judge Alito (“Alito’s Credibility Problem”) in today’s Washington Post.

Kennedy’s attack is a jumble of distortions, inventions, and non sequiturs. In the interest of brevity, I’m going to refrain from revisiting Kennedy’s own credibility. Here’s a quick response to Kennedy’s five stated areas of concern:

1. Alito’s 1985 job application essay sets forth a classic statement of American principles: “I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values. In the field of law, I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.”

Kennedy asserts, without anything resembling an argument, that these views “raise serious concerns about [Alito’s] ability to interpret the Constitution with a fair and open mind.” He also claims that Alito tried to distance himself from those views by telling Kennedy that he “was just a 35-year-old seeking a job.” A well-informed source tells me that Kennedy’s quote is a concoction and that Alito has never tried to suggest that the 1985 essay was not a genuine statement of his views at that time.

2. Kennedy finds nefarious Alito’s “membership” in Concerned Alumni of Princeton. But Alito was enrolled in the ROTC program at Princeton when Princeton, in the midst of the Cold War, decided to eliminate that program. Concerned Alumni of Princeton opposed that decision and Princeton’s later resistance to ROTC. Alito’s membership in CAP evidently consisted merely of dues payment.

Although Alito admirably doesn’t pretend decades later to a specific recollection of why he joined CAP, it would seem obvious that its support for ROTC was the driving factor. Beyond its role in national defense, ROTC enabled students like Alito from families of modest income to attend Princeton.

I don’t claim to know much about CAP, but does the Left really want to advance the position that it is fair to impute to a person who joins an organization every single position that organization takes, as well as any statements made by members of that organization? If we want to play games like that, it’s interesting to note that Kennedy’s main expert on CAP (and the witness Democrats initially slated for the confirmation hearing) equates eating meat with complicity in the Holocaust.

3. Only Senator Kennedy seems to think it significant that Judge Alito failed to recuse himself from a case that ethics experts agree he had no obligation to recuse from. Alito has explained that his practice was to recuse from cases involving Vanguard even though he was not ethically obligated to do so and that, through an oversight, he mistakenly took part in one case. When the mistake was called to his attention, he remedied it by having the case re-argued before a different panel (which unanimously reached the same result that his unanimous panel had reached).

Lots of judges throughout the country have, through innocent oversights, mistakenly taken part in cases that the ethics rules would bar them from, and Kennedy himself was dismissive of far more serious complaints against Stephen Breyer, his former staffer, when Breyer was nominated to the Supreme Court in 1994. The notion that Alito’s inadvertent involvement in a case that he wasn’t barred from raises any issue of integrity is ludicrous. And Kennedy’s reference to Alito’s “investments in Vanguard funds” (as though there were some plausible argument that Alito was trying to advance his own financial interests) is shameful.

4. Kennedy claims that Alito has “sided with the government and against the citizens” in numerous cases and that this somehow shows that he has not been an impartial decisionmaker. It’s rather strange for an elected representative to posit the false dichotomy between the “government” and the “citizens”. In any event, Kennedy offers not a scintilla of evidence that Alito has not been impartial.

5. Kennedy somehow thinks that remarks that Alito offered in a non-judicial capacity bear on Alito’s commitment to set aside his personal beliefs when acting as a judge. Worse, he confuses the theory of the “unitary executive” with the distinct question of the scope of executive powers.

In sum, the only questions of credibility, fairness and decency raised by Kennedy’s op-ed (if indeed these questions are still open ones in anyone’s mind) are whether Kennedy can credibly, fairly, and decently assess Judge Alito’s manifest and compelling qualifications for the Supreme Court.