Teddy Kennedy’s Incredible Attack on Alito

Published January 7, 2006

National Review Online

After a thorough investigation, the American Bar Association unanimously gave Judge Alito its highest rating (“well qualified”) on its criteria of “integrity, professional competence and judicial temperament.” But that hasn’t stopped Teddy Kennedy from cobbling together a nasty hit piece on Judge Alito (“Alito’s Credibility Problem“) in today’s Washington Post.

Kennedy’s attack is a jumble of distortions, inventions, and non sequiturs. In the interest of brevity, I’m going to refrain from revisiting Kennedy’s own credibility. Here’s a quick response to Kennedy’s five stated areas of concern:

1. Alito’s 1985 job application essay sets forth a classic statement of American principles: “I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values. In the field of law, I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.”

Kennedy asserts, without anything resembling an argument, that these views “raise serious concerns about [Alito’s] ability to interpret the Constitution with a fair and open mind.” He also claims that Alito tried to distance himself from those views by telling Kennedy that he “was just a 35-year-old seeking a job.” A well-informed source tells me that Kennedy’s quote is a concoction and that Alito has never tried to suggest that the 1985 essay was not a genuine statement of his views at that time.

2. Kennedy finds nefarious Alito’s “membership” in Concerned Alumni of Princeton. But Alito was enrolled in the ROTC program at Princeton when Princeton, in the midst of the Cold War, decided to eliminate that program. Concerned Alumni of Princeton opposed that decision and Princeton’s later resistance to ROTC. Alito’s membership in CAP evidently consisted merely of dues payment.

Although Alito admirably doesn’t pretend decades later to a specific recollection of why he joined CAP, it would seem obvious that its support for ROTC was the driving factor. Beyond its role in national defense, ROTC enabled students like Alito from families of modest income to attend Princeton.

I don’t claim to know much about CAP, but does the Left really want to advance the position that it is fair to impute to a person who joins an organization every single position that organization takes, as well as any statements made by members of that organization? If we want to play games like that, it’s interesting to note that Kennedy’s main expert on CAP (and the witness Democrats initially slated for the confirmation hearing) equates eating meat with complicity in the Holocaust.

3. Only Senator Kennedy seems to think it significant that Judge Alito failed to recuse himself from a case that ethics experts agree he had no obligation to recuse from. Alito has explained that his practice was to recuse from cases involving Vanguard even though he was not ethically obligated to do so and that, through an oversight, he mistakenly took part in one case. When the mistake was called to his attention, he remedied it by having the case re-argued before a different panel (which unanimously reached the same result that his unanimous panel had reached).

Lots of judges throughout the country have, through innocent oversights, mistakenly taken part in cases that the ethics rules would bar them from, and Kennedy himself was dismissive of far more serious complaints against Stephen Breyer, his former staffer, when Breyer was nominated to the Supreme Court in 1994. The notion that Alito’s inadvertent involvement in a case that he wasn’t barred from raises any issue of integrity is ludicrous. And Kennedy’s reference to Alito’s “investments in Vanguard funds” (as though there were some plausible argument that Alito was trying to advance his own financial interests) is shameful.

4. Kennedy claims that Alito has “sided with the government and against the citizens” in numerous cases and that this somehow shows that he has not been an impartial decisionmaker. It’s rather strange for an elected representative to posit the false dichotomy between the “government” and the “citizens”. In any event, Kennedy offers not a scintilla of evidence that Alito has not been impartial.

5. Kennedy somehow thinks that remarks that Alito offered in a non-judicial capacity bear on Alito’s commitment to set aside his personal beliefs when acting as a judge. Worse, he confuses the theory of the “unitary executive” with the distinct question of the scope of executive powers.

In sum, the only questions of credibility, fairness and decency raised by Kennedy’s op-ed (if indeed these questions are still open ones in anyone’s mind) are whether Kennedy can credibly, fairly, and decently assess Judge Alito’s manifest and compelling qualifications for the Supreme Court.

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