Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt
Judge Alito Day 1: Dodging and Weaving
Yesterday, Judge Alito wondered, "How in the world did I get here?" The answer is straightforward: Harriet Miers got tossed and the right wing picked Alito. Today, Judge Alito didn't answer the questions he needed to clear up his record. This leaves only his record for Senators to consider. The record is disturbing.
Dodging and Weaving on Presidential Power
Judge Alito's stock answer in response to questions about the limits on presidential power was: "no person is above the law, and that includes the President." Unfortunately, vague platitudes on this topic are inadequate, especially at a time when the President has authorized the NSA to spy on Americans without a warrant.
Judge Alito's dodging and weaving aside, he has a long record of deference to Presidential authority. From his support of absolute immunity for government officials who authorized illegal wiretaps, to his promotion of presidential signing statements designed to override Congressional intent, to his support for the "Unitary Executive Theory," to his upholding of a warrantless FBI video surveillance, he has left a long paper trail of troubling deference to presidential power.
Judge Alito, if confirmed, would replace Justice O'Connor - who understood that executive power must have reasonable limits. As she noted in Hamdi v. Rumsfeld: "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Based on his testimony today, there are serious concerns that Judge Alito does appreciate this principle.
Dodging and Weaving over Membership in the Concerned Alumni of Princeton (CAP)
In 1985, Judge Alito touted his membership in CAP to try to get a political job. Today, Judge Alito's answers about his involvement were contradictory.
Judge Alito said today that he couldn't remember why he joined CAP. "Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization." [1/10/06]
Then, Judge Alito tried to downplay his membership in the group formed in opposition to the admission of women and minorities to Princeton, by saying that his reasons for joining CAP related to the issue of ROTC expulsion from campus. "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 thought 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." [1/10/06]
By the time CAP was formed in 1972, ROTC was back on the Princeton campus. [See, Harvard Crimson, "Princeton Students Protest Return of ROTC," 1/13/1972; "A Survey of ROTC's Status in the Ivies," 9/28/1973] The status of ROTC was not the reason CAP was formed: the admission of women and minorities to the university was.
Even if there were lingering ROTC issues in 1972, those issues certainly were settled by 1985, when Judge Alito noted his membership in the organization as part of his job application. Senator Bill Frist and former Senator Bill Bradley were aware of the group's aims when they were publicly critical of its aims.
Dodging and Weaving On Personal Privacy and Reproductive Rights
When asked today whether he believes the Constitution protects a right to privacy, Judge Alito gave a stock answer that avoided how far those protections extend. "Senator, I do agree that the Constitution protects a right to privacy." [1/10/06]
His testimony doesn't square with his record, in which he clearly expressed his legal views that the Constitution does not protect a woman's right to choose.
- And Pat Buchanan said today that Alito sent a message to the right that Roe v. Wade could be overturned. "Alito sent a signal to the right too. He said, yes, you know, precedent is important. The more precedents, the more important it is, but, I mean, stare decisis is not inexorable. Decisions can be overturned including Roe v. Wade. . ." [MSNBC, 1/10/06]
Dodging and Weaving on Vanguard Recusal
Judge Alito never satisfactorily explained why he went back on his 1990 promise to the Senate to recuse himself from all cases involving Vanguard, a company in which he had invested hundreds of thousands of dollars.
Today, Judge Alito suggested that his failure to recuse was an oversight on his part because of a "failure to focus on the recusal issue" 12 years after his pledge to the Senate. This is just the latest one of many explanations Judge Alito has offered for his failure to recuse.
Judge Alito's dodging and weaving is troubling. It does not clarify why he failed to include Vanguard on a list of companies from which he should be disqualified as far back as 1993 - only three years after his pledge to the Senate. Nor does it explain why he finally added Vanguard to his recusal list in 2003. Nor does it explain why he has given varied explanations for his conduct to Senators, which have changed over time and several of which are not supported by the evidence.