With Supreme Court nominee Samuel Alito watching the theatrics from his chair, two senior senators on Wednesday engaged in a fiery exchange over a request for records tied to Alito’s membership to a Princeton alumni group more than 30 years ago.
Questions about Alito’s membership in Concerned Alumni of Princeton, a group that at the time tried to limit entry to Princeton by minorities and women, led to the exchange between Sen. Edward Kennedy, D-Mass., and Senate Judiciary Committee Chairman Arlen Specter, R-Pa.
Last month, Kennedy sent a letter to Specter seeking a committee subpoena for private documents of William A. Rusher, a founder of the group, that Kennedy said might shed light on Alito’s membership when he attended Princeton.
Specter said he had not received the letter and bristled at Kennedy’s pledge to push repeatedly for a committee vote on a subpoena.
“I will not have you run this committee,” said Specter, who brushed aside Kennedy’s threats.
Kennedy later submitted for the record a letter from Specter’s staff responding to Kennedy’s letter.
Report at odds with nominee’s recall
Alito, for his part, reiterated earlier statements that he had no recollection of his membership, which he listed on a job application. “If I had been involved actively in any way in the group, I’m sure that I would remember,” Alito said.
Alito's lack of recall is at odds with a Nov. 18 report in the Daily Princetonian newspaper. The story states that Alito, in the process of completing a “Personal Qualifications Statement” as part of an application for a job in Ronald Reagan's Justice Department, wrote that he was “a member of the Concerned Alumni of Princeton University, a conservative alumni group.”
Interviews with alumni who were contemporaries of Alito at Princeton told the Daily Princetonian they recalled the group “as a far right organization funded by conservative alumni committed to turning back the clock on coeducation at the University.”
Criticism gets personal
The emotions spilled over again later Wednesday when Sen. Lindsay Graham, R-S.C., offered a tribute to Alito, one that alluded to the criticism of Alito’s past and his character.
“Judge Alito, I am sorry that you’ve had to go through this. I am sorry that your family has had to sit here and listen to this,” Graham said.
As Graham praised “the way you’ve lived your life and the way you’ve raised your children” and spoke of “the law clerks — men and women, black and white” who had praised the nominee, Alito's wife, Martha-Ann Bomgardner, who had sat behind her husband for hours of questioning over several days, broke down in tears. She later left the hearing room.
Moments earlier, the senator had asked Alito, “Are you really a closet bigot?” The nominee said no, and Graham said, “No sir, you’re not.”
Graham’s exchange with the nominee came after withering questions from several Judiciary Committee Democrats.
Republican Sen. Orrin Hatch of Utah suggested that Alito’s wife was upset with the comments of Democrats. “She’s sick and tired of the mistreatment of her husband,” Hatch said. He also said that she was suffering from a migraine headache.
She returned to the hearing room after a committee break, smiling and holding her husband’s hand.
Accused of inconsistencies
Earlier Wednesday, Alito was aggressively questioned by Democrats who accused him of inconsistencies on issues ranging from voting rights to ethics to his membership in a conservative organization.
On the third day of confirmation hearings, Democrats also expressed frustration as Alito described the landmark 1973 ruling legalizing abortion as “an important precedent” but declined to echo Chief Justice John Roberts, who has called it settled law.
Republicans on the panel dismissed the criticism and defended Alito, President Bush’s choice to replace retiring Justice Sandra Day O’Connor, as a conservative jurist with a solid 15-year record on the federal appeals court.
“Your critics are grasping at any straw to tarnish your record,” said Sen. Charles Grassley, R-Iowa.
Frist weighs in
Another senator, Senate Majority Leader Bill Frist, also a Princeton alumnus, issued a statement Wednesday saying, "Judge Alito has condemned discrimination, and his record of more than 15 years demonstrates his commitment to equal rights for women and minorities.”
Frist called the Democrats' focus on Alito's activities at Princeton “another transparent attempt by the Democrats to wage an unfair smear campaign against an exceptionally qualified nominee.”
Republicans hold the majority in the Senate — 55-44 with one independent — and Alito is expected to win confirmation to the high court when the Senate votes later this month. The Democrats’ only hope of scuttling the nomination rests with defections among the GOP ranks and solid opposition among it own members.
After challenging the 55-year-old Alito’s court record and Reagan-era writings on Tuesday, Democrats took a new tack in accusing him of inconsistency.
“A number of us have been troubled by what we see as inconsistencies in some of the answers,” Sen. Pat Leahy of Vermont, the panel’s ranking Democrat, told Alito.
Sen. Richard Durbin of Illinois cited Alito’s testimony Tuesday in which he said he would have an open mind if faced with the question of abortion on the Supreme Court. The senator said the nominee’s writings and testimony suggested otherwise, with “a mind that sadly is closed in some instances.”
Roberts has described Roe v. Wade, the 1973 ruling, as settled law. Alito said the ruling “is an important precedent of the Supreme Court,” but he declined Durbin’s repeated prodding to use the term “settled law.”
On the Republican side, Sen. Sam Brownback of Kansas said some Supreme Court decisions are indefensible and invite reconsideration. The court, Brownback said, had revisited some 200 cases for that very reason.
“Some precedents are undeserving of respect,” he told Alito.
Other Democrat concerns
Leahy listed several concerns, among them Alito’s comments on the principle of one-man, one-vote and his inability to recall details about his membership in the Princeton alumni organization.
Democrats also voiced concern about Alito’s answers concerning whether he told the 3rd U.S. Circuit Court of Appeals that he should not be hearing cases involving investment company Vanguard. He holds six-figure investments with Vanguard.
Alito promised the Judiciary Committee at his 1990 confirmation hearing as an appellate judge that he would remove himself from cases that present a conflict of interest. He said his participation in a 2002 Vanguard case was an oversight, although he also said he didn’t do anything wrong. The American Bar Association and his supporters have accepted that explanation.
Sen. Russ Feingold, D-Wis., pressed Alito on whether he had told the 3rd U.S. Circuit Court of Appeals that he should not be hearing cases involving the Vanguard investment company.
“So you don’t recall whether you notified them or not?” Feingold asked.
“I do not. No,” Alito said.
Sen. Kennedy suggested that Alito had added another interpretation as to why he did not recuse himself in the Vanguard case. At issue was whether Alito would avoid any conflict of interest during an “initial period of service” as a judge.
Kennedy pressed him on whether that amounted to three years, or five years. Alito’s participation in the case occurred 12 years into his service.
Alito said he has tried to go beyond the code of ethics, and he maintained that his failure to recuse himself from the case was an oversight.
Replacing a swing vote
Alito would replace O’Connor, the swing vote on issues such as abortion, affirmative action and the death penalty during her 25 years on the court.
Republicans complained that Democrats had already made up their minds about Alito.
“I do think that there are those who have already decided to vote against your nomination and are looking for some reason to do so,” said Sen. John Cornyn, R-Texas. “And I think one of the reasons that they may claim is that you’ve been nonresponsive.” Cornyn said he saw nothing to derail Alito’s confirmation.
Democrats sought to elicit Alito’s personal views on a wide range of issues, from executive authority to Supreme Court decisions on terrorism cases during wartime. The judge often sidestepped such questions and instead provided chapter-and-verse of what the justices had written or else cited constitutional law.