Alito's Credibility Problem
By Edward M. Kennedy, The Washington Post
Saturday 07 January 2006

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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 writer is a Democratic senator from Massachusetts.

January 8, 2006
Editorial, NY TIMES
Judging Samuel Alito

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Judicial nominations are not always motivated by ideology, but the nomination of Judge Samuel Alito certainly was. President Bush's previous choice to fill Justice Sandra Day O'Connor's seat on the Supreme Court, Harriet Miers, was hounded into withdrawing by the far right, primarily because she appeared to hold moderate views on a variety of legal issues. President Bush placated Ms. Miers's conservative critics by nominating Judge Alito, who has long been one of their favorites.

Judge Alito's confirmation hearings begin tomorrow. He may be able to use them to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power - a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in "one person one vote."

The White House has tried to create an air of inevitability around Judge Alito's confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do.

If President Bush had chosen a pragmatic, mainstream conservative like Justice O'Connor to fill the seat, these confirmation hearings would be a breeze. But now, the Senate has a duty to delve into the many areas in which Judge Alito's record suggests he is an extremist, including:

ABORTION Judge Alito has not only opposed Roe v. Wade, he has also worked to overturn it. When he applied for a promotion in the Reagan administration in 1985, he wrote that he was "particularly proud" of his legal arguments "that the Constitution does not protect a right to an abortion." In meetings with senators, Judge Alito has talked about his respect for Roe, but he has said nothing to discourage his supporters on the religious right who back him because they believe he will vote to overturn it. The American people have a right to know, unambiguously, where Judge Alito stands on Roe.

PRESIDENTIAL POWER The continuing domestic wiretapping scandal shows that the Bush administration has a dangerous view of its own powers, and the Supreme Court is the most important check on such excesses. But Judge Alito has some disturbing views about handing the president even more power. He has argued that courts interpreting statutes should consider the president's intent when he signed the law to be just as important as Congress's intent in writing and passing the law. It is a radical suggestion that indicates he has an imperial view of presidential power.

CONGRESSIONAL POWER While Judge Alito seems intent on expanding the president's power, he has called for sharply reducing the power of Congress. In United States v. Rybar, he wrote a now-infamous dissent arguing that Congress exceeded its power in passing a law that banned machine guns. As a Reagan administration lawyer, he argued that Congress did not have the power to pass the Truth in Mileage Act to protect consumers from odometer fraud.

ONE PERSON ONE VOTE Judge Alito said in his 1985 application that he had become interested in constitutional law as a student partly because of his opposition to the Warren court's reapportionment rulings, which created the "one person one vote" standard. He seems to still have believed as a 35-year-old lawyer that these cases, which made legislative districts much more fair, came out the wrong way.

There are other areas - including civil rights, sex discrimination, the environment and criminal law - where Judge Alito's record appears extreme. The Senate should question him closely on all of them.

The Senate should also explore Judge Alito's honesty. According to a senator he met with, he tried to dismiss his statement about the Constitution's not protecting abortion as merely part of a job application, which suggests he will bend the truth when it suits his purposes. Judge Alito has said he does not recall being in an ultraconservative group called Concerned Alumni of Princeton, which opposed co-education and affirmative action. That is odd, since he boasted of his membership in that same 1985 job application. The tortuous history of his promise to Congress to recuse himself in cases involving the Vanguard companies, which he ultimately failed to do, should also be explored.

Judge Alito's nomination is often presented as an abortion rights showdown, but it is much more than that. Those who care about the broad range of rights and liberties that Americans now have, and about honesty in government, should tune into the hearings starting tomorrow - and call their senators with their reactions to what they hear.