WASHINGTON — Samuel Alito '72 fought off frequently exacting questions in his Wednesday confirmation hearings for the Supreme Court, but had little to combat other than monotony yesterday as the hearings wound down and drew him closer to widely expected committee approval.
Alito forcefully distanced himself Wednesday from any connection to the conservative group called Concerned Alumni of Princeton (CAP), an organization whose stances on coeducation and affirmative action had up to that point dogged his confirmation hearings for a seat 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.
He also suggested that he put the group on his 1985 application to Ronald Reagan's Justice Department to establish his conservative credentials. "You have to look at the question that I was responding to and the form that I was filling out," he said. "I was applying for a position in the Reagan administration. And my answers were truthful statements, but what I was trying to outline were the things that were relevant to obtaining a political position."
Supreme Court coverage in today's 'Prince':
CAP's ROTC advocacy died down in 1980s Senators probe Princeton's pastThe 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.
But yesterday, the intensity fizzled in the third and final round of questioning. Most of the issues — along with a weary, dwindling press corps — appeared exhausted after roughly 18 hours of direct questioning this week.
Throughout the hearings, Alito continued to disarm senators' questions with cautious, sometimes highly technical answers, and he is widely expected to win the approval of the Senate Judiciary Committee on a party-line vote next week.
Nevertheless, the judge seemed unable to parry probing questions about his CAP membership, prompting Kennedy to call for a subpoena of the private papers of William Rusher '44, one of the group's founders.
Rusher voluntarily released the papers to Senate staffers later that day, and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said Thursday morning that there was no mention of Alito in the papers.
The finding supports a previous account by New York Times reporter David Kirkpatrick '92, who reported that Alito was not a founding member or significant contributor. Rusher earlier told The Daily Princetonian that he did not understand why Kennedy wanted to see his papers, given that Kirkpatrick had already reviewed them.
That seemed to put a damper on subsequent questioning of Alito's participation in CAP, a group that has been portrayed by Democrats and other critics as far-right and discriminatory.
Instead, Alito spent much of his time Thursday reiterating and clarifying previous answers. For their part, many senators staked out their positions on Alito's confirmation in their final minutes of question time.
Many Democrats expressed reservations about Alito's belief in a strong or "unitary" executive and his membership in CAP — both of which Kennedy accused Alito of disingenuously distancing himself from in the hearings.
Kennedy likewise criticized Alito for failing "to give us any plausible explanation" for not recusing himself from a case that came before him as a judge involving the mutual fund company Vanguard. Alito held shares of Vanguard at the time and had earlier sworn under oath to recuse himself from any case involving a conflict of interest.
Sen. Orrin Hatch (R-Utah) stepped in to defend Alito, saying, "I really believe that bringing up Vanguard or the Princeton matter goes beyond the pale at this point in this hearing. And I think most people think this is really a case of much ado about nothing."
Little of note followed in direct questioning, which was eventually closed to the public for an executive session. Specter would only say of the executive session that the committee "reviewed confidential data on the background of Judge Alito and it was all found to be in order."
The committee reconvened to hear witness testimony. Three representatives from the American Bar Association (ABA) said the group had given Alito its highest rating.
They also defended his actions in the Vanguard case and on the CAP issue.
"We were very concerned about the membership of that and what happened," committee member Marna Tucker said. "And all of the people we spoke to on the courts, women and minorities, people who he had worked with, people who had sat on panels with him side by side in issuing judicial opinions, almost universally said that they saw no bigotry, no prejudice."
A subsequent panel of Alito supporters and critics in the legal community gave a more nuanced view of Alito as a judge, but by this point many of the senators were absent and remained so as the mostly monotonous day of hearings came to a close.
Testimony from panels of Democratic and Republican witnesses will continue today in the committee hearing's last stage.
Princeton questioned
In Wednesday's hearings, Alito faced tough questions about his judicial record — and, unexpectedly, his alma mater. Just 24 hours after saying he "wasn't a big Princeton fan," Biden announced that he wanted to "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.
But Biden added: "A pretty widely known debate is 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, 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.
CAP involvement
Also on Wednesday, Kennedy demanded Rusher's papers in a 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 in its magazine, Prospect, and in a letter sent to all members.
Alito responded in what has become a common refrain: "I wracked 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.
Reflecting the intensity of the questioning, Alito's wife Martha exited the hearing room in tears after Graham asked him if he was a "bigot." She later rejoined the proceedings.
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, but tension between the two senators remained palpable.
CAP commentary
The CAP debate has been playing out in the public sphere for weeks now, and it appears no closer to resolution. 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, added that because the organization courted donors, he thinks 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 Justice Department spokesperson] Terry Eastland who would have been involved in CAP and that would signal to them that he was a bona fide conservative," Napolitano added.
Others, including Alito's Yale Law School roommate Mark Dwyer '72, have previously suggested that Alito noted his membership in CAP to better his chances at receiving the Justice Department job.
"There's nothing really here for him to hide," Napolitano said. "He wanted to show he was conservative to a conservative attorney general for a conservative president."
But critics say Alito's membership implies culpability.
Stephen Dujack '76, a longtime CAP critic who was originally scheduled to testify, said: "It's the whole idea that he didn't quit when these other decent people did or censured it," 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."
Judith Schaeffer '74, deputy legal director for People for the American Way, a liberal advocacy group that opposes Alito's confirmation, said his explanations for being a CAP member "just don't wash."
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.
The abortion issue
The controversy is sharper still 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 Wednesday, "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.' "
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.
George, however, 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 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."
Schaeffer, in contrast, argued that Alito's reticence on the abortion issue — which she characterized as "a failure to answer a yes-or-no question about something that matters so vitally"— should disqualify him.
But Alito's supporters seem to believe that his confirmation is inevitable.
Graham went so far as to tell Alito during Wednesday's hearings: "You're going to get confirmed."
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