From their perspective, Sen. Charles Schumer (D-N.Y.) scored a victory of sorts in the controversy over Alito’s disputed membership in the Concerned Alumni of Princeton University, a body Alito described as a “conservative alumni group” in his now-infamous 1985 application to the Justice Department’s Office of Legal Counsel.
The group, founded in the early 1970s, had publicly bemoaned the fact that Princeton University was admitting too many minorities and women. The group’s magazine had also published several inflammatory articles.
“Everywhere one turns, blacks and Hispanics are demanding jobs simply because they’re black and Hispanic,” read an excerpt from one article that Massachusetts Democrat Sen. Edward Kennedy had blown up into an exhibit for the hearings.
“Did you read this article?” Kennedy asked Alito.
“I disagree with all of that,” responded Alito, raising his modulated tone for perhaps the first time. “I would never endorse that. I never have endorsed that. If I thought that’s what the organization stood for, I never would have joined.”
Alito repeated the claim he had made the day before, that he had “racked his brain” and could not remember why he had joined the group. The best explanation he could offer, he said, was his displeasure at the university’s attitude toward ROTC, which had been banned at one point but had returned to the campus before Alito graduated in 1972. Alito had been a member of an ROTC unit.
Toward the end of the day Wednesday, however, Schumer was able to elicit a bit more satisfying explanation for Democrats.
Said Schumer: “You somehow plucked this group, which you now say you somehow have no recollection. Why that group? Why was it plucked out and put on the application?”
Answered Alito: “You have to look at the question I was responding to. What I was trying to outline were things relevant to obtaining a political position.”
It was the first time Alito had conceded to what many considered obvious: his need to show the Department of Justice, then under the highly conservative influence of Attorney General Edwin Meese, that his conservative bona fides were in order.
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“That was the answer he should have started with,” said Illinois Democrat Sen. Richard Durbin, after the hearing had ended for the day. “It helps some. I just wish he hadn’t gone through this tortuous process to get us there.”
Indeed, the pressure evidently got to Alito’s wife, Martha-Ann Bomgardner, who at one point late in the day left the hearing room in tears after Sen. Lindsey Graham (R-S.C.) publicly apologized to the family because they had to endure what he termed the often baseless allegations that accompany a Supreme Court nomination process. “The emotions caught up with her after two-and-a-half tense days,” said former Sen. Daniel Coates (R-Ind.), who has been charged with shepherding Alito through the nomination process. She later returned to the room.
Earlier in the day, Durbin, the first Democrat to question Alito on Wednesday, asked him why he could assert the constitutionality of Brown v. Board of Education, which struck down racially enforced school segregation, and Griswold v. Connecticut, which established the right to marital privacy, but not the right to an abortion.
The Brown decision, said Alito, was based on the 14th Amendment, while Griswold was based on that amendment’s due process clause, and, he added, that particular holding “is not likely to come before the 3rd Circuit [and] not likely to come before the Supreme Court.”
Abortion issues, he said, are involved in litigation “at all levels.”
As he did on Tuesday, Alito acknowledged that a comment on the same 1985 job application that he was “particularly proud” of his contributions to cases in the solicitor general’s office which argued that the “constitution does not protect a right to an abortion” was an accurate statement 20 years ago.
“The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the solicitor general’s office. But that was 20 years ago, and a great deal has happened in the case law since then,” Alito said.
Alito once again refused to say what his opinion on the matter is today, although he repeated his promise to follow the pattern he laid out in Tuesday’s testimony: Once he’d viewed the case through the lens of stare decisis, he would approach the case “the way I approach every legal issue . . . and that is to approach it with an open mind and to go through the whole judicial process.”
Kennedy’s questioning of Alito on his membership in the Princeton alumni group led to a brief but heated argument between Judiciary Chairman Arlen Specter (R-Pa.) and Kennedy, who said he’d sent Specter a letter asking the committee to subpoena the group’s records from William Rusher, a former leader of the Princeton alumni association.
“We’re entitled to this information,” said Kennedy, who said he had mailed Specter the request some weeks earlier and could not understand why Specter had not responded to it.
“I take umbrage at your telling me what I received,” said Specter, somewhat sharply. “There’s a big difference in what’s mailed and what’s received. . . . We’re in the middle of a round of hearings. This is the first time you have personally called it to my attention, and I will consider it in due course,” Specter added, before slamming the gavel down and continuing the proceedings.
It was later determined that Rusher’s papers had been donated to the Library of Congress but that no member of the Judiciary Committee had yet asked to look at them. By early afternoon committee staffers were already at the library reviewing the documents. A report in The New York Times last November concluded that Alito, as he had testified earlier, had played no major role in the group.
T.R. Goldman can be contacted at [email protected].