January 12, 2006,
You can say what you want about the liberal groups opposing Supreme Court nominee Samuel Alito, but they stay on message. So much so that by late afternoon Wednesday, when Alito's confirmation hearing was nearing the end of its third day, and Alito himself had testified for nearly 15 hours, and just a few members of the Senate Judiciary Committee, not to mention the press and the public, remained in the Hart Senate Office Building hearing room, and Democratic senators were struggling and failing to find new ways to interrogate Alito on his membership in Concerned Alumni of Princeton, and Alito was looking like an absolute lock to win confirmation, barring a suicidal Democratic filibuster…well, even then, the anti-Alito coalition was bravely claiming that everything was going just fine.
"It's been a very, very bad day for him," said Nan Aron, head of the Alliance for Justice. By "him," she meant Alito, who had suffered, Aron said, severe blows to his credibility. "The credibility gap that existed before the hearing has become a credibility chasm," said People for the American Way head Ralph Neas, talking to reporters outside the hearing room. "Judge Alito has a profound problem both on substance and credibility grounds," said Wade Henderson of the Leadership Conference on Civil Rights.
Republicans laughed when they heard that one. "It's over," one GOP aide said flatly, referring both to the Democratic opposition and the hearing itself.
By the end of the day, and certainly by this morning, it was clear that the only thing that made Wednesday's proceedings interesting the face-off between Democratic Sen. Edward Kennedy and Republican Chairman Arlen Specter had been a blunder for Democrats.
As he was questioning Alito about his membership in Concerned Alumni of Princeton, Kennedy's staff handed out copies of a December 22, 2005, letter to Specter in which Kennedy demanded that the committee review documents related to CAP in the papers of William Rusher (the longtime National Review publisher) at the Library of Congress. "Do you have any hesitancy or reason for us not to look at those documents?" Kennedy asked Alito.
"They're not my documents, Senator," Alito said, "and I have no opinion about it whatsoever."
"Do you think they'd be helpful?"
"Senator, I don't believe I had any active involvement with this group."
At that point, Kennedy moved that the committee take a vote which requires that it go into something called executive session to issue a subpoena for the papers. Specter, clearly caught by surprise, didn't know what was going on. "Well, we'll consider that, Senator Kennedy," he said. "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."
But you got a letter from me, Kennedy said. No, I didn't, Specter answered. The two men began to bicker. "If I'm going to be denied, then I'd appeal the decision of the chair," Kennedy said. "I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination."
I'm not denying anything, Specter answered, saying it was time to move on. No, said Kennedy, I want a vote. "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."
"Well, Senator Kennedy," Specter said, "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."
As the two men fought, word began to circulate among reporters that the papers had already been seen, by New York Times reporter David Kirkpatrick, who had done a story back in November on Alito and CAP. Kirkpatrick wrote that the Rusher papers, along with other records at Princeton, "give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, 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."
Nevertheless, Democrats still wanted to see the papers, so over the lunch break, Specter directed his staff to get in touch with Rusher. Rusher quickly gave the committee permission to examine the papers, and staffers were at the Library of Congress within an hour or two. By last night, after reviewing the contents of four boxes of Rusher's papers, committee staff concluded, in the words of an internal Republican memo, that "Judge Alito's name never appears in any document of any kind anywhere."
In the end, Kennedy's gambit resembled the entire Democratic strategy on Alito: fighting words, promises of a major showdown, and halfhearted, bungled execution. The Kennedy demand was perhaps the last gasp of the Democratic opposition on the committee, which was already expected to vote unanimously against Alito. If Specter had refused to allow an inspection of the documents, then Democrats could have claimed that Republicans were hiding the ugly truth about Alito. But since Specter took the rather simple step of calling Rusher, and Rusher readily agreed to allow an examination of his papers, the whole thing fell apart within hours. Like the Republican staffer said, it's over.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.