[Mb-civic] Alito's Credibility Problem - Edward M. Kennedy - Washington Post Op-Ed

[William Swiggard]

Alito's Credibility Problem

By Edward M. Kennedy
Saturday, January 7, 2006; A17

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.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/06/AR2006010601490.html
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