Nomination Watch

Alito and Concerned Alumni of Princeton: what is being kept from public view?

As we noted earlier, Judge Alito was once a member of Concerned Alumni of Princeton (CAP), which was openly hostile to the admission of women, and increased enrollment of minorities, at Princeton. One of CAP’s founders fondly reminisced about the days when Princeton was “a body of men, relatively homogenous in interests and backgrounds.”  An article in its magazine entitled “In Defense of Elitism” argued that “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 that government vouchsafe them the right to bear children.” 

Alito proudly listed his CAP membership on a job application in 1985, when he thought it would help him get a promotion in the Reagan Administration.  Moreover, although other prominent Princeton alumni like Senate Majority Leader Bill Frist and former Senator Bill Bradley denounced CAP, Alito has never done so.  Now that an affiliation with CAP is hardly a plus, however, he says he has “no recollection” of being a CAP member – that’s what he said in his responses to the Senate Judiciary Committee’s questionnaire last month.  Alito’s membership in an organization whose central purpose was to ensure that Princeton remained a white, male institution raises serious concerns about his commitment to advancing opportunities for women and minorities – and his supposed memory lapse about his membership raises questions about his credibility as well. 

Now it turns out that there are extensive CAP records – its publications, minutes of meetings, etc. -- that have been kept from public view.  These are the records of William A. Rusher, former publisher of the National Review, who was one of CAP’s founders.  Several boxes of his records are maintained at the Library of Congress, and could shed light on the group’s activities and on Alito’s involvement in it.  But release of Rusher’s records requires Rusher’s agreement, and he has so far declined to authorize their release, even to the Congressional Research Service. Senator Edward Kennedy therefore wrote to Judiciary Committee Chairman Arlen Specter just before the holidays, asking Sen. Specter to formally request Rusher’s cooperation, on behalf of the Committee. Kennedy argues, “Judge Alito's assertion that he cannot recall anything about his controversial involvement in CAP, requires us to find other ways of fulfilling our constitutional responsibility to get at the facts. The Rusher papers provide a readily available means of doing so. Certainly we do not want to leave the Committee, the Senate, and the nation open to an unwelcome surprise when the papers eventually become public after Mr. Rusher's death.”

The Senate and the public clearly should be given access to these records, and – with or without the Rusher records -- Alito’s affiliation with CAP should receive close scrutiny at the hearing next week.

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The struggle for relevant documents escalates

All eight Democrats on the Senate Judiciary Committee yesterday wrote to Attorney General Gonzales asking for documents relating to Samuel Alito's service in the Justice Department.  They requested internal memos Alito wrote in the Office of the Solicitor General relating to cases before the Supreme Court, 45 opinions the committee has not yet received and any internal memos he wrote in the Office of Legal Counsel -- noting that memos already received by the committee have shed light on Alito's "legal views of important constitutional issues as well as his approach to precedent and other key judicial concepts." 

A few internal memos Alito wrote while in the Justice Department have already been made public, and it does not appear that the sky has fallen.  The Administration should turn over anything else that will help the Senate and the public know what it would be getting if Alito is confirmed.

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Check out Friday’s press briefing and coverage

As we mentioned last week, our own Judy Appelbaum was one of several attorneys who briefed reporters last Friday on important cases that Judge Roberts worked on while in the Solicitor General’s office from 1989 to 1993.  Senators have requested documents about Roberts’s work on these cases, but so far none of that information has been released to the public.  The briefing was carried live on C-SPAN, and you can watch it using RealOne Player here (if that link doesn’t work, go here and click on “Alliance for Justice Briefing on John Roberts”). 

NPR also reported on the press briefing, quoting Judy on two points.  First, the report quoted Judy saying that Roberts’s own words show why the Solicitor General documents are so important: 

“In a May 5, 1993 op-ed in the Wall Street Journal, he said that who the Solicitor General decides to support—which cases, which side—can play a significant role in shaping what the Supreme Court does.”   

It also quoted Judy pointing out that Roberts argued in a case called Franklin v. Gwinnett County Public Schools that girls who were sexually harassed in school should not be able to sue for damages under Title IX if the school ignored the problem:

“The Supreme Court in that case emphatically and unanimously disagreed.  But had the John Roberts position prevailed, there would be no remedy at all for victims of sexual harassment like [Christine Franklin, the plaintiff in that case].” 

You can listen to the NPR report using WindowsMedia by clicking here.

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Eager for more paper cuts

Thus far, the White House has refused to disclose critical memos from Judge Roberts’ time in the Solicitor General’s office—undoubtedly the most important and influential political position he held in the executive branch.  These documents may provide critical insight into Roberts’ views on important areas of the law and need to be reviewed prior to any action on his nomination.

Tomorrow, August 19th at 11:00 a.m., lawyers from key organizations working on the nomination, including our own Judy Appelbaum, will brief reporters on the cases that are the focus of the request for Solicitor General memos, and why they are significant.  We’re told C-SPAN will cover the press briefing live, so look for it.

Another document request

Senator Patrick Leahy, the ranking Democratic member on the Senate Judiciary Committee, yesterday sent a letter to the President on behalf of all of his Democratic colleagues on the Committee, pointing out that the White House hasn’t responded to “numerous” requests for documents related to Judge Roberts’s record, and that it has released some documents to the press but not to the Senate:

We understand that the process of reviewing the approximately 50,000 pages of relevant papers housed in the Reagan Library in Simi Valley, California, is well underway.  Published reports state that the head of the Library has estimated that such a review would take three weeks, and the National Archive’s website estimates the documents will be made public by mid-August.  Nonetheless, on August 5, 2005, it was reported in the Washington Post that the White House already has possession of some of those “Reagan-era” documents, and that someone in the White House had provided at least two of them to the newspaper . . . We are especially concerned that upon reviewing these documents someone in the White House provided them to the press but not to the Committee; if there are any other such documents we should receive them immediately.

You can read the full letter here.  We certainly hope that the White House will take Senator Leahy’s concerns seriously and will release these documents to the Senate and to the public.

Why documents matter: the Bybee lesson

Last Friday, the Justice Department denied a request from members of the Senate Judiciary Committee to produce documents related to Judge Roberts’s time in the Solicitor General’s office.  The debate over whether the Administration will release documents related to Roberts’s work as a government lawyer can seem technical and boring.  However, these documents are vital to finding out about Judge Roberts’ legal philosophy, his views on important issues, and his record—all of which the Senate has to understand before it can decide whether he should be a Supreme Court Justice. 

A sobering example of why it is so important that relevant documents be made public came just a few years ago, with the nomination and confirmation of Jay Bybee to the Ninth Circuit Court of Appeals.  President Bush nominated Bybee to a lifetime seat on the court in May 2002.  In August 2002, Bybee, who was then the Assistant Attorney General for the Justice Department’s Office of Legal Counsel, signed a memo arguing that it could be justified for the United States to torture detainees in some circumstances.  The memo also defined torture in an incredibly narrow way, and argued that the President can ignore U.S. laws when acting as Commander-in-Chief.

These arguments were legally dubious and very controversial.  Yet when Bybee had his Senate confirmation hearings in February 2003, nobody asked him about his memo—because no one knew about it.  The memo was not publicly available, and it was not released to the Senate before Bybee’s hearings despite Senators’ requests for “unpublished Office of Legal Counsel opinions”—requests that, if they had been granted, would have included the torture memo.  Senators still asked Bybee numerous questions about his work for the Justice Department, but Bybee refused to answer on the grounds that the information was confidential.  In May 2003, Bybee was confirmed as a federal judge on the 9th Circuit Court of Appeals.

It wasn’t until 2004, nearly a year after Bybee’s confirmation, that the existence of the “torture memo” was leaked to the press.  After an outcry from military, religious, and human rights groups, the Administration and the Justice Department repudiated the memo.  Attorney General Gonzales, who was the recipient of the Bybee memo in his then-position as White House Legal Counsel, was grilled about the memo during his confirmation hearings, and he took pains to distance himself from its conclusions.

Of course, by this time it was too late to ask Judge Bybee about his memo, because he was already safely sitting in a lifetime seat on a federal court. 

Let’s hope the Senate doesn’t make a similar mistake with Judge Roberts.  Of course, we’re not saying there is the equivalent of the “torture memo” hiding in the boxes of unreleased documents from Roberts’ time in government service—but we can’t say there isn’t one, either.  Only after the Senate has been able to review those documents will Senators be able to gauge just what kind of Justice they, and the American people, will be getting if they confirm John Roberts to the Supreme Court.

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