Alito disavows CAP

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Sen. Joseph Biden (D-Del.) dons a Princeton baseball cap during hearings Wednesday. Just 24 hours after saying he "wasn't a big Princeton fan," Biden announced that he wanted "set the record straight."

WASHINGTON — Samuel Alito '72 forcefully distanced himself from any connection to the conservative group Concerned Alumni of Princeton (CAP), an organization whose stances on coeducation and affirmative action have dogged his confirmation hearings for a position on the Supreme Court.

"I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly," Alito said in response to senators' questions during the third day of his confirmation hearings Wednesday.

The same day, Princeton remained in the spotlight as Sen. Edward Kennedy (D-Mass.) demanded a subpoena for CAP records, Sen. Joseph Biden (D-Del.) donned a Princeton cap and Sen. Lindsey Graham (R-S.C.) asked for an explanation of the eating club system.

Alito continued to disarm senators' questions with cautious yet generally complete answers, and by most accounts he is on his way to winning the approval of the Senate Judiciary Committee. The judge, nevertheless, seemed unable to parry probing questions about his CAP membership, prompting Kennedy to demand a subpoena for the private papers of William Rusher '44, one of the group's founders.

After exchanging tense words with Kennedy, Chairman Arlen Specter (R-Pa.) said later during the hearings that Rusher had agreed to release the papers to Kennedy's staff. Rusher earlier told The Daily Princetonian that he did not understand why Kennedy wanted to see his papers, given that New York Times reporter David Kirkpatrick '92 had already reviewed them and found nothing substantial. (See related story.)

Late Wednesday afternoon, following prolonged questioning about Alito's views on discrimination, CAP and whether he was a "bigot," Alito's wife Martha exited the hearing room in tears. She rejoined the proceedings later in the day.

"After three full days of attacks against her husband's character, Mrs. Alito had enough," a senior Republican official was quoted as saying in the Drudge Report. "Democrat behavior during this hearing has not only been wrong, it's been embarrassing. Ted Kennedy is nothing but a bully."

Meanwhile, just 24 hours after saying he "wasn't a big Princeton fan," Biden announced that he wanted "set the record straight." Donning a Princeton baseball cap, Biden explained he was proud to wear it — "after being on campus as much as I have at Princeton" — because minorities represent 28.7 percent of the Class of 2005 and women make up 47 percent. (Read story about Biden's criticsm.)

But Biden added: "A pretty widely known debate that in the Ivies, the one, sort of, last holdout, fighting to not admit as many women and fighting not to admit as many minorities, was Princeton."

Explaining the shift in Biden's treatment of Princeton from Tuesday to Wednesday, the senator's press secretary Chip Unruh said in an email: "Senator Biden was simply criticizing Princeton's pre-1970s admissions policy that excluded women and lacked diversity. But he knows that just like people, institutions have the ability to change and Princeton has changed for the better. He applauds Princeton for the gains it has made and continues to make."

Graham also took an interest in Princeton, so much so that for a time he was asking more questions about Alito's alma mater than about Alito himself.

"The more I know about Princeton — it's an interesting place," Graham said. He proceeded to ask Alito a series of questions about eating clubs, which he referred to as "eating societies."

Graham also listed prominent alumni who were once members of eating clubs, including Woodrow Wilson 1879, defense secretary Donald Rumsfeld '54 and Indiana Gov. Mitch Daniels '71. He mentioned others, including Sen. Bill Frist '74 (R-Tenn.) and Sen. Paul Sarbanes '54 (D-Md.), whose eating club status Graham had yet to determine.

"I promise you I'll get to the bottom of that before this is all done," he said, concluding the unexpected inquiry on eating clubs.

Involvement with CAP

Kennedy demanded Rusher's papers in dramatic fashion, eventually shouting, "we are entitled to this information." Kennedy also aggressively questioned Alito's motives for joining CAP, noting what he termed the group's "breathtaking" insensitivity in articles published its magazine, Prospect, and in a letter sent to all members.

Alito responded in what has become a common refrain: "I racked my memory as to why I might have joined. And the issue that had bothered me for a period of time as an undergraduate and in the '80s, around the time when I made the statement, was the issue of ROTC. This was the issue about the administration of Princeton that bothered me."

He added that he hadn't seen any of the racist or sexist articles Kennedy presented and that if he had, he "would never have had anything to do with" CAP.

Alito also said he wasn't the type to join CAP, saying "there's talk about eating clubs, about all-male eating clubs. There's talk about the admission of alumni children. There's opposition to opening up the admissions process. None of that is something that I would identify with."

An unsatisfied Kennedy told Alito that his "explanations about the membership in this sort of radical group, and why you listed it on your job application, are extremely troubling. And, in fact, I don't think that they add up."

After Kennedy's demand for Rusher's papers, the hearings degenerated into a bitter back-and-forth between Kennedy and Specter, with Kennedy insisting he had sent Specter a request for Rusher's papers late last year and Specter insisting he hadn't received the request.

Specter resolved the argument after the lunch break, saying there was a mix-up in the delivery of the request. His office had earlier not responded to repeated requests from the 'Prince' seeking a comment on Kennedy's Dec. 22 letter asking for access to Rusher's papers. (Read Kennedy's letter.)

The CAP debate has been playing out in the public sphere for weeks now, and it appears no closer to resolution despite some 15 hours of testimony from Alito over the past two days. Even the public release Rusher papers is unlikely to settle the CAP issue, commentators on both sides of the debate said.

Rusher said in an interview today with the National Review, where he was the former publisher, that "there is nothing discreditable in" his papers and that Alito "certainly was not heavily involved in CAP, if at all."

Supporters have sought to play down Alito's CAP connection, saying that Democrats' efforts amount to guilt by association and indicate that they are desperate for any excuse to criticize the candidate.

"I initially thought the CAP question was legitimate, for one, because I myself, if [current Justice] Ruth Bader Ginsberg said she was a member of the Concerned Women of Columbia, would want to know what it was," Fox News analyst and former New Jersey Superior Court Judge Andrew Napolitano '72 said.

"But the dwelling on [CAP] by Sen. Schumer and Sen. Kennedy and the attempting to ascribe to Judge Alito what was written in the magazine [Prospect] was absurd and shows the poverty of their [Democrats'] arguments," he said.

Napolitano, a former CAP board member, speculated that because the organization courted donors, Alito might have been one of the many alumni who received a donation request and sent in as little as $15 for a yearlong subscription to Prospect. "Does that make him responsible for what's in the magazine?" Napolitano asked.

Alito "probably put CAP on the [1985 job] form because there were conservatives in the Reagan administration Justice Department like [then department spokesman] Terry Eastland who would have been involved in CAP and that would signal to them that he was a bona fide conservative," Napolitano said.

Others, including Alito's Yale Law School roommate, have previously suggested that Alito noted his membership in CAP to better his chances at receiving the Justice Department job. (See related story.)

"There's nothing really here for him to hide. He wanted to show he was conservative to a conservative attorney general for a conservative president," Napolitano said.

But critics say Alito's membership alone implies culpability.

The Rusher papers "won't necessarily include anything about Sam Alito — in fact, I don't think they will — but it doesn't matter because he was a member," said Judith Schaeffer '74, deputy legal director for People for the American Way, a liberal advocacy group that opposes Alito's confirmation.

But she said she was unconvinced by Alito's testimony on CAP.

Alito "must be the only living Princeton alumnus of his generation who has no recollection of CAP — and he was a member," said Schaeffer, who graduated from the University two years after Alito.

Stephen Dujack '76, a longtime CAP critic who was originally scheduled to testify Friday (see related story), agreed that Rusher's papers are unlikely to contain incriminating evidence because "it appears [Alito] had very little to do with" the group.

But "it's the whole idea that he didn't quit when these other decent people did or censured it," Dujack said, referring to former senator Bill Bradley '65 and Frist, now the Senate Majority Leader. "Sam Alito is not a racist and not a sexist. It would be completely unfair to say that. However, he's amazingly indifferent to the plight of women and minorities."

Dujack wondered how Alito could have "remained a member while he's receiving a magazine that's strewn with racial and misogynist episodes and taunts, some of which rise to such a pitch that they outrage the Princeton campus." (See related story on CAP.)

Abortion

The disagreement is still sharper over Alito's handling of abortion questions. By reaffirming the importance of upholding past decisions — such as Roe v. Wade, which recognized a woman's right to an abortion — but refusing to say Roe couldn't be overturned, Alito left Democratic senators exasperated.

Sen. Charles Schumer (D-N.Y.), perhaps the most persistent in questioning Alito on abortion, concluded: "You've responded to more than 300 questions but, in all due respect, you haven't answered enough of them."

"And so, again," Schumer continued, "I think we ought to make clear that, at least to many of us here, we haven't gotten the answers to questions, yes or no, on some important issues."

But conservative legal scholar and University politics professor Robert George said Alito's willingness to answer questions, including those on abortion, actually stood out as one of the defining features of the hearings.

"He answered more fully than Ginsberg, did more fully than [recently-confirmed Chief Justice John] Roberts did," George said. "Schumer is not pleased because he wants [Alito] to say how he would vote, what would amount to a campaign promise or pledge."

"There's simply no way that any nominee is going to be able to tell the Senate and the public how he would vote on a case that comes before him."

George added that Alito's unusual openness "might have a longterm effect of shifting the Ginsberg standard a little bit."

"The Senate will demand that [nominees] at least talk about how they think about cases," George said. "It will no longer be considered adequate to say 'that this is a case that might come before me and I won't say anything about it.' "

People for the American Way's Schaeffer, however, said she was unimpressed by Alito's answers to questions about whether he denied a Constitutional basis for abortion, as he argued in a 1985 memo written while he worked in Ronald Reagan's Justice Department.

"He spent two days avoiding questions they have asked him repeatedly," she said. "He will not answer a direct, simple, yes-or-no question: Do you think the Constitution protects the right to an abortion?"

"It's a simple reason why he wouldn't answer, which is that the majority of Americans would be up in arms" if he said no, Schaeffer said.

Still, George said he didn't "see what he [Alito] could have added" to his answers to the abortion question. "The only way he could have satisfied those people is if he says he's going to vote to uphold Roe."

How Alito fared

Whether Alito is confirmed remains to be seen, but with a majority in the Senate, Republicans seem confident of a victory.

"The main audience is the public, and what it's fundamentally interested in is looking at a nominee, sizing him up," George said. "And that's what hearings do: see if he stands up under fire, see if seems like a decent, intelligent, upright person. He seems to have hit a home run."

George cautioned, though, that "it's not as is if he's crossed the finish line yet."

Graham, one of the Republican senators on the judiciary committee, went so far as to tell Alito matter-of-factly, "You're going to get confirmed."

But Shaeffer argued the opposite, citing Alito's answer on abortion — "a failure to answer a yes or no question about something that matters so vitally."