Date: January 11, 2006
Senator: Kennedy
Topic:
Contents
SPECTER: Senator Kennedy?
KENNEDY: Thank you very much, Mr. Chairman.
KENNEDY: Judge Alito, I hadn't planned to get into Vanguard on this particular round. But I chaired those hearings when you were promoted to the Circuit Court. And I was also the one that filed those questions which you responded to.
And you responded under oath, when you promised the committee that you would recuse yourself on Vanguard issues.
Now I'm just hearing from you that you believe that that pledge was somehow a condition. Unlike my friend -- and he is my friend -- from Iowa, who says, "Well, a pledge is just a pledge; it's like any political pledge around here; it's a political promise and doesn't carry much weight," that's not my opinion, and I don't think it is the opinion of most of the members of this body.
You made a pledge to the Senate -- effectively, to the American people -- that you were going to recuse yourself. Now you say, well, it was just for any initial time, and I think 12 years is more than I really had in mind -- you just qualified your answer.
How long, when you made that pledge and that promise to the committee, how long did you intend to keep it?
ALITO: Well, Senator...
KENNEDY: And when that time was up, did you ever imagine that you would get back to the committee and said, "I believe my time is up on Vanguard"?
ALITO: Well, Senator, the nature of the question that I was responding to did not figure in the way the Monga case was handled. And I thought I made that clear yesterday.
I was following, throughout my time on the bench, the practice of going beyond the code. And had I focused on this issue when the matter came before me, I would have recused myself at this time as I later did.
But in answer to Senator Hatch's question, looking at that question today and looking at the answer, the question was: What you intend to do during your initial period of service? And I think that that's what the answer has to be read as responding to.
But just to be clear, I'm not saying that that's why this played out the way it did. I'm just saying that's how I think the question and the answer -- that's how I think the question and any response to the answer by any nominee needs to be interpreted.
KENNEDY: Well, if there's someone that can just understand what you just told us, I'd be interested in it, because I don't.
HATCH: Well, I'll be glad to explain it.
KENNEDY: Well, if...
(LAUGHTER)
Mr. Chairman.
You, in response to Senator Hatch, did not believe that you are bound by the promise, because you said in your mind that you felt that it was just for the initial aspects of it.
KENNEDY: That's another issue, because initially was meant to include the investments that you had at that particular time. You might have those investments and then discard an investment and, therefore, no longer have a conflict. That is what the asker of the question had intended.
But you've added another wrinkle to it. You've just indicated that when you made a pledge to the committee that you were going to recuse yourself, that you thought that at sometime you were going to be released.
And I'd just like to know how long that was going to be. Was that going to be two years, was it going to be three years, was it going to be five years? When did you feel that you were going to be released, if we followed your interpretation?
ALITO: Senator, I did not rely on that time limitation in relation to what I did in the Monga case. And I hope I've made that clear. If I didn't in my previous answer, I do want to make it clear. I did not rely on that in my handling of the Monga case.
Looking at the question now, where it says initial period of service, I would say that 12 years later is not the initial period of service. But that was...
KENNEDY: When did it stop then? When did you think that your pledge to the committee halted, after how many years? Six months? What did you intend at the time that you made the pledge? What was in your mind at that time? I'm interested in what's in your mind at this time, but what was in your mind at that time?
ALITO: I can't specifically recall what was in my mind at that time, but I'll tell you what I'm pretty sure I had in mind. I was not a judge, and I was being considered for a judicial position.
And what I was trying to express was basically the policy that I followed during all my years on the bench, which is to bend over backwards to make sure that I didn't do anything that came close to violating the code of conduct or give anybody the impression that I was doing anything that was improper.
KENNEDY: The last question on this is how long then -- when you made the promise under oath to the committee that you were going to recuse yourself -- and you understand that now to be in your own interpretation to be just the initial time -- how long did you think that that pledge and promise lasted?
ALITO: Senator, as I said, I can't tell you 15 years later exactly what I thought when I read that question.
It refers to the initial period of service. And looking at it now, it doesn't seem to me that 12 years later is the initial period of service.
KENNEDY: My question to you, which I guess I'm not going to get an answer to, is when did it? Is 10 years? How about three years? Is that?
ALITO: I do not know exactly what the time limitation would be, but 12 years does seem to me to be not the initial period.
KENNEDY: We'll come back.
I just want to mention in fairness to my friend and colleague -- both of my friends, Senator Hatch and Senator Durbin, and to Senator Hatch's quoting of Senator Durbin that you responded on the question of the Roe v. Wade when you were in the circuit court, I have here the record that said of the hearings of Roberts.
And the question was asked by Senator Specter to Judge Roberts during the time of his consideration for the Supreme Court. Senator Durbin can clarify the record, but I wanted that to be clarified so that there wasn't the confusion about it.
In the time that I have, Judge Alito, I listened carefully to responses you gave to Senator Leahy about the CAP organization at Princeton. And I listened to other responses you gave to our colleagues and again to Senator Durbin earlier today.
KENNEDY: But I have just some questions on this to, at least, try to finalize, at least in my mind. And it might be useful in the committee's mind, as well.
You had indicated in your '85 job application that you were a member of the Federalist Society for Law and Public Policy and a regular participant in its luncheon and a member of the Concerned Alumni at Princeton University, a conservative alumni group.
And you said yesterday that you wracked your memory about the issue and really had no specific recollection of the organization; is that correct?
ALITO: I have no specific recollection of joining the organization.
KENNEDY: And you also said yesterday and today to Senator Durbin that you very likely joined CAP because of your concern over the ROTC program being kicked off campus; is that correct?
ALITO: Well, what I said specifically was that 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.
And I had a high regard for Princeton in many respects, in general, and have participated in a lot of their activities. But this issue bothered me a great deal at various times. And that's what I said.
KENNEDY: And, finally, you said yesterday that you very likely joined CAP around 1985, just before you were applying to the high- level job in the Justice Department under President Ronald Reagan. I think that's correct.
ALITO: Senator, what I specifically said, as I recall, was, if I had done anything substantial in relation to this group, including renewing my membership, I would remember that. And I do not remember that.
KENNEDY: So, I want to ask a few things that I hope can clear this up.
You have no memory of being a member. You graduated from Princeton in 1972, the same year CAP was founded.
KENNEDY: You called CAP a "conservative alumni group."
It also published a publication called Prospect, which includes articles by CAP members about the policies that the organization promoted. You're familiar with that?
ALITO: I don't recall seeing the magazine. I might have seen...
KENNEDY: Did you know that they had a magazine?
ALITO: I've learned of that in recent weeks.
KENNEDY: So a 1983 Prospect essay titled "In Defense of Elitism," stated, quote, "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."
Did you read that article?
FEINSTEIN: Finish the last line.
KENNEDY: Finish the last line -- is, "and homosexuals are...
FEINSTEIN: No, "And now here come women."
KENNEDY: If the senator will let me just...
FEINSTEIN: Yes, I will...
(LAUGHTER)
KENNEDY: Can I get two more minutes from my friend from...
(LAUGHTER)
Just to continue along.
I apologize, Judge.
Did you read this article?
ALITO: I feel confident that I didn't. I'm not familiar with the article, and I don't know the context in which those things were said. But they are antithetical...
KENNEDY: Well, could you think of any context that they could be...
ALITO: Hard to imagine.
If that's what anybody was endorsing, I disagree with all of that. I would never endorse it. I never have endorsed it.
Had I thought that that's what this organization stood for I would never associate myself with it in any way.
KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking.
It announces that a team of doctors has found the AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings.
KENNEDY: And the article then goes on with this terrible statement: "Now that the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps Princeton's Gay Alliance may want to hold an election."
You didn't read that article?
ALITO: I feel confident that I didn't, Senator, because I would not have anything to do with statements of that nature.
KENNEDY: In 1973, a year after you graduated, and during your first year at Yale Law School, former Senator Bill Bradley very publicly disassociated himself with CAP because of its right-wing views and unsupported allegations about the university. His letter of resignation was published in The Prospect; garnered much attention on campus and among the alumni.
Were you aware of that at the time that you listed the organization in your application?
ALITO: I don't think I was aware of that until recent weeks when I was informed of it.
KENNEDY: And in 1974, an alumni panel including now-Senator Frist unanimously concluded that CAP had presented a distorted, narrow, hostile view of the university.
Were you aware of that at the time of the job application?
ALITO: I was not aware of that until very recently.
KENNEDY: In 1980, the New York Times article about the coeducation of Princeton, CAP is described as an organization against the admittance of women. In 1980, you were working as an assistant U.S. attorney in Trenton, New Jersey.
KENNEDY: Did you read the New York Times? Did you see this article?
ALITO: I don't believe that I saw the article.
KENNEDY: And did you read a letter from CAP mailed in 1984 -- this is the year before you put CAP on your application -- to every living alumni -- to every living alumni, so I assume you received it -- which declared: "Princeton is no longer the university you knew it to be."
As evidence, among other reasons, it cited the fact that admission rates for African-Americans and Hispanics were on the rise, while those of alumni children were failing and Princeton's president at a time urged that the then all-male eating clubs to admit females.
And in December 1984, President William Bowen responded by sending his own letter. This is the president of Princeton responded by sending his own letter to all of the alumni in which he called CAP's letter "callous and outrageous."
This letter was the subject of a January 1985 Wall Street Journal editorial congratulating President Bowen for engaging his critics in a free and open debate.
This would be right about the time that you told Senator Kyl you probably joined the organization.
Did you receive the Bowen letter or did you read the Wall Street Journal, which was pretty familiar reading for certainly a lot of people that were in the Reagan administration?
ALITO: Senator, I've testified to everything that I can recall relating to this, and I do not recall knowing any of these things about the organization. And many of the things that you've mentioned are things that I have always stood against.
In your description of the letter that prompted President Bowen's letter, there's talk about returning the Princeton that used to be. 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.
I was not the son of an alumnus. I was not a member of an eating club. I was not a member of an eating facility that was selective. I was not a member of an all-male eating facility. And I would not have identified with any of that.
If I had received any information at any point regarding any of the matters that you have referred to in relation to this organization, I would never have had anything to do with it.
KENNEDY: You think these are conservative views?
ALITO: Senator, whatever I knew about this organization in 1985, I identified as conservative. I don't identify those views as conservative.
What I do recall as an issue that bothered me in relation to the Princeton administration as an undergraduate and continuing into the 1980s was their treatment of the ROTC unit and their general attitude toward the military, which they did not treat with the respect that I thought was deserving. The idea of that it was beneath Princeton to have an ROTC unit on campus was an offensive idea to me.
KENNEDY: Just moving on, you mentioned -- and I only have a few minutes left -- you joined CAP because of your concern about keeping ROTC on campus.
ROTC was a fairly contentious issue on Princeton campus in the early 1970s. The program was slated to be terminated in 1970, when you were an undergraduate. By 1973, one year after you graduated, ROTC had returned to campus and was no longer a source of debate.
And from what I can tell, by 1985, it was basically a dead issue. In fact, my staff reviewed the editions of Prospects from 1983 to 1985 and can only find one mention of ROTC. And it appears in a 1985 issue released for homecoming that year that says: ROTC is popular once again. Here's the Prospect, 1985: ROTC is popular again. This is just about the time that you were submitting this organization in your job application.
ALITO: Senator, if I...
KENNEDY: So...
ALITO: I'm sorry.
KENNEDY: But the -- briefly, please.
ALITO: It's my recollection that this was a continuing source of controversy. There were people on the campus -- members of the faculty, as I recall -- who wanted the unit removed from the campus.
There was certainly controversy about whether students could get credit for courses, which I believe was a military requirement for the maintenance of the unit.
There was controversy, as I recall, about the status of the instructors; whether they could be given any kind of a status in relation to the faculty.
I don't know the exact dates, but it's my recollection that this was a continuing source of controversy.
KENNEDY: Well, Mr. Chairman, my time is running out.
I had wanted to just wind up on a few more brief questions on this.
But I have to say that Judge 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.
Last month, I sent a letter to Senator Specter asking a number of questions about your membership in CAP. And I asked Senator Specter make a formal committee request for the documents in the possession of the Library of Congress as part of the William Rusher papers. Mr. Rusher was the publisher of the National Review, was an active founder and leader of CAP.
Do you have any hesitancy or reason for us not to look at those documents?
ALITO: They're not my documents, Senator, and I have no opinion about it whatsoever.
KENNEDY: Do you think they'd be helpful?
ALITO: Senator, I don't believe I had any active involvement with this group.
I've wracked my memory and I can't recall anything. And if I had been involved actively in any way in the group, I'm sure that I would remember that.
KENNEDY: Well, Mr. Chairman, if I could have your attention, I think we ought to vote on issuing a subpoena to the custodian of those CAP records.
KENNEDY: And I want to do that at an appropriate time. I'd move that the committee go into executive session for the purpose of voting on the issuancing of -- the sole purpose for issuing the subpoena of those records.
SPECTER: Well, we'll consider that, Senator Kennedy. There are many, many requests which are coming to me and many quarters. And, quite candidly, I view the request -- if it's really a matter of importance, you and I see each other all the time and you have never mentioned it to me.
And I do not ascribe a great deal of weight -- we actually didn't get a letter, but...
KENNEDY: You did get a letter. Are you saying...
SPECTER: Well, now wait a minute; you don't know what I got. I'm about to...
KENNEDY: Yes I do, Senator, since I sent it.
SPECTER: Well, the sender does not necessarily know what the recipient gets, Senator Kennedy. You are not in a position to say what I receive.
If you'll bear with me for one minute.
KENNEDY: But I am in a position to say what I sent to you on December 22.
SPECTER: You're in a position to tell me what you sent.
KENNEDY: I renew my request, Senator. And if I'm going to be denied, then I'd appeal the decision of the chair.
I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination.
This nominee has indicated he has no objection to seeing us these issues. We've gone over the questions and we are entitled to get that kind of information. And if you're going to rule it out of order, I want to have a vote on that here on our committee.
SPECTER: Well, don't be premature, Senator Kennedy. I'm not about to make a ruling on this state of the record.
I hope you won't mind if I consider it, and I hope you won't mind if I give you the specifics that there was no letter which I received.
I take umbrage at your telling me what I received. I don't mind your telling me what you mailed. But there's a big difference between what's mailed and what's received. And you know that.
We're going to move on now.
Senator Grassley...
KENNEDY: Mr. Chairman, I'd appeal the ruling of the chair on this.
SPECTER: There has been no ruling of the chair, Senator Kennedy.
KENNEDY: Well what is the -- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress -- that purpose and that purpose only.
And if I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution.
I think it's...
SPECTER: Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again. And I'm the chairman of this committee and I have heard your request and I will consider it.
And I'm not going to have you run this committee and decide when we're going to go into executive session.
We are in the middle of a round of hearings. This is the first time you have personally called it to my attention, and this is the first time that I have focused on it. And I will consider in due course.
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