Ted Kennedy’s CAP Attack on Alito Backfires
Senate Democrat's bombast collapses into farce
Nothing succeeds like excess. Or so some senators seem to think.
Liberal Democratic senator Ted Kennedy was a man of excesses, rhetorical and otherwise. His bombast against Ronald Reagan’s nomination of Robert Bork in 1987 ignited a successful national political campaign against the nomination. Nearly two decades later, he was determined to defeat George W. Bush’s nomination of Samuel Alito.
In the personal statement that he submitted to the White House’s Office of Presidential Personnel in 1985—the topic of last week’s post—Alito stated that he was “a member of the Concerned Alumni of Princeton University, a conservative alumni group.” Kennedy determined to make Alito’s membership in the Concerned Alumni of Princeton (CAP) a major focus of the hearing.
But this time Kennedy’s reckless excesses backfired on him and his fellow Democrats.
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Samuel Alito’s father “was brought to this country as an infant” and “grew up in poverty.” His mother was born to Italian immigrants. Alito grew up in “an unpretentious, down-to-earth community” in the Trenton area and attended the local public schools. When he entered Princeton, he “went a full 12 miles down the road, but really to a different world,” a world of privilege often mixed with irresponsibility:
I saw some very smart people and very privileged people behaving irresponsibly, and I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.
(Quotes are from Alito’s opening statement at his confirmation hearing.)
Alito joined Army ROTC at Princeton. In May 1970, the spring of his sophomore year, two students firebombed Princeton’s ROTC facility. That same spring, Princeton decided to kick ROTC off campus. During his senior year, Alito had to travel to Trenton State College to finish his ROTC courses.
Princeton had long had a set of elite and exclusive eating clubs for upperclassmen. Those eating clubs remained all-male after women were admitted to Princeton in Alito’s sophomore year. Alito did not seek entry into any of those eating clubs. Instead, he took his meals at a university facility open to all students.
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On the cusp of the confirmation hearing, Kennedy outlined his CAP attack on Alito in a Washington Post op-ed in which he alleged that “credibility” was “clearly a major issue for Alito.” CAP was formed in 1972 by, he contended, a group of wealthy alumni “to resist the growing influx of female, African American, Hispanic and even disabled students who were changing the face of Princeton.” Kennedy also asserted, on the basis of no evidence whatsoever, that Alito joined CAP in its early years and was a member for a decade or so. His long-ago membership in CAP, Kennedy insinuated, made him unfit for the Supreme Court. (Kennedy made a jumble of other attacks in that op-ed, all of which I addressed in this same-day blog post.)
Alito, as an Italian-American from a family of modest economic and social status, was very much part of “changing the face of Princeton.” He had no interest in joining Princeton’s eating clubs, much less in maintaining them as single-sex institutions. Unlike Kennedy, he was not a beneficiary of the Ivy League’s legacy admissions. He was the proud product of a co-educational public education, and he touted his dining hall as “one of the most co-educational facilities on the campus.”
The late journalist Terry Eastland, who worked briefly for CAP early in its existence, recalled that the group’s general concerns were about “a faculty tilting left, a curriculum going politically correct, academic standards declining.” Of all of CAP’s various causes, the one that most obviously had appeal for Alito was its support for ROTC.
Kennedy devoted nearly a full round of his questioning of Alito to CAP, and other Democratic senators also questioned him extensively about CAP. Alito testified:
I have tried to think of what might have caused me to sign up for membership, and if I did, it must have been around that time [1985]. And the issue that had rankled me about Princeton for some time was the issue of ROTC.
I was in ROTC when I was at Princeton, and the unit was expelled from the campus. And I felt that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn’t think that it was right to oppose the military for that reason.
And the issue, although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus, and the attitude seemed to be that the military was a bad institution and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn’t merit getting credit, that the instructors shouldn’t be viewed as part of the faculty. And that was the issue that bothered me about that….
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Kennedy wouldn’t accept that Alito’s decision to join CAP could have been motivated by concerns about ROTC. He tried to argue that Princeton had reached a peaceful accord with ROTC by 1985. But a 1985 article on CAP (added to the hearing record by Republican senators) revealed that CAP had concerns about “a campaign to eliminate the Army ROTC program.” And Princeton didn’t re-establish Navy and Air Force ROTC at Princeton until a decade or so ago—thirty years after Alito’s brief membership.
Kennedy also wouldn’t accept that Alito had been a member of CAP only briefly. (CAP went defunct in 1986.)
Kennedy declared that he found Alito’s answers “extremely troubling”: “I don’t think they add up.”
In an attempt to add high drama to the hearing—and to concoct a procedural excuse for delaying the hearing and for pursuing a filibuster—Kennedy called on Judiciary Committee chairman Arlen Specter to allow a vote on issuing a subpoena to obtain CAP records among the William Rusher papers in the Library of Congress. Rusher, better known as the publisher of National Review, had been a founder and leader of CAP.
Kennedy’s notion that Rusher’s Library of Congress papers would undermine or contradict Alito’s responses was a farce. A full six weeks earlier, a New York Times reporter had published an article recounting his review of Rusher’s papers. The papers, he reported, “give no indication” that Alito “was among the group’s major donors.” “He was not an active leader of the group, and two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.” In short, there was no evidence that Alito’s membership consisted of anything more than a payment of dues.
As Specter explained, when Specter’s staff called Rusher over the lunch hour that same day, Rusher volunteered that “he would be glad to have us look at his record” and that he would have made the papers available to Kennedy if Kennedy had requested them. Specter immediately arranged for Kennedy’s staffers to review Rusher’s records.
The following morning, Specter triumphantly reported the results of the review:
The Committee staff, accompanied by representatives of Senator Kennedy, went through the Rusher files yesterday, finishing up their work, I am advised, at about 2 a.m. this morning, and provided me with a memorandum that the Committee staff reviewed more than four boxes of documents from the personal files of William Rusher concerning CAP.
Judge Alito’s name never appeared in any document. His name was not mentioned in any of the letters to or from the founder, William Rusher. His name was not mentioned in any of the letters to or from CAP’s long-term executive director, T. Harding Jones. His name does not appear anywhere in the dozens of letters to CAP or from CAP. The files contained canceled checks for subscriptions to CAP’s magazine, Prospect, but none from Judge Alito. The files contained dozens of articles including investigative expo[se]s written at the height of the organization’s prominence, but Samuel Alito’s name is nowhere to be found in any of them.
The Rusher files contained lists of the board of directors, the advisory board, and the contributors to both CAP and Prospect Magazine, but none of these lists contains Samuel Alito’s name. The files contain minutes and attendance records from CAP meetings in 1983 and 1984, just before Samuel Alito listed the organization on his job application, but Samuel Alito did not attend any of those meetings, at least according to those records. He was not even mentioned in the minutes. The files contained dozens of issues of CAP’s magazines, but none of the articles was written by, quoted or mentioned Samuel Alito. CAP founder, William Rusher, said, ‘‘I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP if at all.’’
That same morning, the Washington Times reported that Ted Kennedy remained a member of a “final club” at Harvard, the Owl Club, that refused to admit females as members and that had been evicted from campus twenty years earlier because of its discriminatory policy. The Owl Club wouldn’t even allow female guests to enter the club through the front door.
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The hostile questioning by Kennedy and his fellow Democrats did have one consequential effect: When Senator Lindsey Graham repudiated their allegations of bigotry, Alito’s wife Martha-Ann was so overcome with appreciation of Graham’s simple decency that she fled the hearing room in tears.
Republican staffers on the Judiciary Committee tell me that was the moment at which the tide shifted decisively in Alito’s favor. In the words of one staffer, “It’s hard to overstate what a turning point it felt like.” Democrats also saw the episode as critical, even as they refused to fault themselves for their ridiculous overreach on CAP:
Several Democrats expressed frustration over what they saw as the Republicans outmaneuvering them by drawing attention to an episode Wednesday when Judge Alito’s wife, Martha-Ann, began crying as her husband was being questioned. That evening, senior Democratic senate aides convened at the Dirksen Senate Office Building, stunned at the realization that the pictures of a weeping Mrs. Alito were being broadcast across the nation -- as opposed to, for example, images of Senator Edward M. Kennedy, Democrat of Massachusetts, pressing Judge Alito about his membership in an alumni club that resisted affirmative action efforts.
“Had she not cried, we would have won that day,” said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats’ problems. “It got front-page attention. It was on every local news show.” [New York Times, 1/15/06]
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It could have been even worse for Democrats. Just before the hearing started, Democrats scratched from their witness list their supposed expert on CAP, a journalist by the name of Stephen R. Dujack. As the New York Times reported:
The cancellation came after members of the staff of Senator John Cornyn, Republican of Texas, distributed a Dujack column that compared eating meat to the Holocaust.
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There is no need to go deep into the many scandals of Ted Kennedy’s life—causing Mary Jo Kopechne’s death at Chappaquiddick, cheating on his academics at Harvard, engaging in serial adultery and womanizing, to name a few—to ponder the marvel that Kennedy would dare to challenge Alito’s credibility, on CAP or anything else. One lesson that Kennedy had evidently absorbed from his life of power and privilege was that he could get away with anything. But at least on the Alito nomination, his resulting recklessness boomeranged against him.
A few days later, Kennedy ended his 50-year membership in the Owl Club.