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Catching up with Sen. Kerry

With press releases Thursday night from his campaign committee and his Senate press office touting his return, 2004 Democratic presidential candidate Sen. John Kerry, D-Mass., flew back from Davos, Switzerland Friday to join the effort to block a Senate vote on President Bush’s nomination of Judge Samuel Alito to the Supreme Court. 

But Kerry’s behavior left Capitol Hill reporters wondering why he had gone to the trouble of flying back. He made a 30-minute speech on the Senate floor, winding up with the phrase, "This is a fight worth having."

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Would you do as Yoo says?

In his interrogation, Sen. Joseph Biden raised the views of former Bush Justice Department official John Yoo, who now teaches law at Berkeley.

Under Yoo’s theory, at least as depicted by Biden, “the President could invade Syria tomorrow or invade Iran tomorrow without any approval by Congress…. Our only recourse would be to cut off appropriations.”

But Biden argued that Congress “would have to cut off appropriations for the whole military” so cutting off funds for a particular military operation is “a totally useless tool.”

But, one wondered, what about the McGovern-Hatfield amendment or the Cooper-Church amendment in which Congress cut off funding for the war in Indochina in the 1970s?

But Alito carefully reminded Biden that he is not Yoo.

“You seem to be agreeing with Prof. Yoo,” Biden told Alito.

“I hope I’m not giving you that impression,” Alito replied. “I have not read Prof. Yoo’s book.”

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More questions than answers, Kennedy says

In his final blast at Alito this morning, Sen. Kennedy told Alito that the hearings had raised “even more questions about Judge Alito’s commitment to fairness and equality for all.”

Kennedy chided Alito for his 2000 speech to the Federalist Society about the theory of the unitary executive (which deals not with war powers but with administrative agencies such as the SEC)

Kennedy accused Alito of having “run away from this very radical and bizarre theory.”

On the Princeton alumni issue, Kennedy said, “I was pleased that Judge Alito distanced himself from CAP. But we still do not have a clear answer as to why Judge Alito joined this repulsive group in the first place.”

Earlier Kennedy said, “Thanks to your family for support they’ve given” – I didn’t get a chance to glance at Mrs. Alito at that very point.

Kennedy did not comment at all on the search of the CAP records which turned up nothing that would document Alito’s involvement in the group.

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So, what was in those CAP papers?

Chairman Specter begins by saying said the committee staff has reviewed the Conservative Alumni of Princeton (CAP) files among the William Rusher papers at the Library of Congress.

Specter reads the results of the staff review:

Alito’s name never appeared in any documents.

His name is never mentioned in letters to or from CAP leaders.

There are cancelled checks made out to CAP, but none from Alito.

None of contributor lists contains Alito’s name.

Dozens of articles from the CAP’s Prospect magazine are in the Rusher papers, but Alito’s name is nowhere to be found in any of them.

Sen. Edward Kennedy, D-Mass., looks on silently as Specter read the result of the search. It was Kennedy who implied yesterday that Alito or his handlers might be hiding evidence of his involvement with CAP.

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Will backlash help Alito?

Will Mrs. Alito’s tearful exit create a backlash against Democratic foes of Samuel Alito?

Will the use of Alito’s membership in the Concerned Alumni of Princeton (CAP) help rather than hurt the nominee?

When Sen. Ted Kennedy read into the record yesterday a few inflammatory, anti-gay, and bigoted statements from articles published in the CAP magazine, he gave Alito the chance to disavow those statements, but he also implied that Alito should have known that CAP published a magazine which printed such incendiary things.

“I do not recall knowing any of these things about the organization,” Alito told Kennedy. “And many of the things that you've mentioned are things that I have always stood against.”

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'I’m not any kind of bigot'

A few minutes ago Mrs. Alito started weeping and got up and left the hearing room.

Her exit came during an emotional speech by Sen. Lindsey Graham, R-S.C. in which he expressed regret to Alito that his reputation had been attacked for his membership in the conservative Princeton alumni group. Graham also asked Alito whether he was “closet bigot.”

Alito replied, “I’m not any kind of bigot.”

Graham said he believed Alito was not bigoted because of the way he and Mrs. Alito had raised their children.

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Rusher answers Kennedy... sort of

Former National Review publisher William Rusher told the magazine's web site this afternoon, "I haven't seen those (CAP) files in 30 years, but I am sure there is nothing discreditable in them. Of course, Senator Kennedy can always hope."

Asked whether he knows Alito or recalls him being involved in CAP, Rusher said, "I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all."

Meanwhile, at mid-afternoon, Sen. Feinstein was trying to get Alito to commit himself on whether Roe v. Wade is settled law and whether he would vote to strike it down.

Alito repeated his previous formulation that Roe is “entitled to respect as a precedent of the court.”

But he went on to say that no precedent could be deemed totally immune from reconsideration.

He quoted Chief Justice Rehnquist’s phrase from a 1991 case called Payne v. Tennessee: “Stare decisis is not an inexorable command.”

Alito explained what he might say to a hypothetical plaintiff: “It would be wrong for me to say, ‘if you bring this before my court I’m not even going to listen to you….Go away, I’ve made up my mind.’ That’s the antithesis of what judges are supposed to do.”

This openness to considering precedent would apply even in the case of Roe v. Wade, he implied.

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The partisan squabbling continues

Senate Majority Leader Bill Frist rushed to defend Samuel Alito in the CAP furor. Frist's statement was read aloud by Sen. Kyl at the hearing this afternoon.

“As a Princeton alumnus, I had concerns about CAP, but I have no concerns about Judge Alito's credibility, integrity and his commitment to protecting the equal rights of all Americans,” Frist's statement said.

“This (CAP controversy) is another transparent attempt by the Democrats to wage an unfair smear campaign against an exceptionally qualified nominee.”

And Republican staffers passed out to reporters a Nov. 26, 2005 New York Times article in which reporter David Kirkpatrick reviewed the Rusher/CAP records at the Library of congress.

“The records and others at the Mudd Library at Princeton give no indication that Judge Alito… 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.”

After being called by Specter's staff, Rusher has now agreed to allow committee staff to examine the records in the Library of Congress.

"I'm just a little puzzled about the issue being raised in this manner," Specter said, saying that Kennedy had never spoken to him personally about the request for Rusher documents prior to today's quarrel.

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Is this an Anita Hill moment for Samuel Alito?

At issue: Alito’s one-time membership in the Concerned Alumni of Princeton, (CAP) a conservative group that defended all-male clubs on campus and decried the lessening of admissions preference traditionally given to children of alumni.

Is CAP the explosive issue that will sink his nomination?

“He could not tell the committee the circumstances of the membership… the reasons for his membership other than using it on his application for a job during a Republican administration,” Kennedy told reporters.

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A flash of excitement ... finally

Sen. Ted Kennedy demanded that the Judiciary Committee go into executive session so it could vote on a subpoena to get records of former National Review publisher William Rusher on the Concerned Alumni of Princeton group.

Would those records reveal whether Alito was involved in the group, contrary to his testimony today and yesterday?

Kennedy shouted: “We are entitled to this information! It deals with fundamental issues of equality!”

Chairman Specter declined to rule on the question of going into executive session and issue the subpoena. Kennedy warned Specter he’d keep bringing up the issue and force votes on it “again and again.”

“I am not concerned about your threats to have votes again and again!” Specter fired back at Kennedy.

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