The man nominated to replace the first female Justice in US history isn’t just not a woman — he’s a man who was a proud member of “Concerned Alumni of Princeton”, a group formed to oppose the admission of women to that male bastion. (“Q: How many Concerned Alumni of Princeton does it take to change a light bulb? A: Six – One to change it, and five to sit around and talk about how good the old one was.”)
Now, this was back in 1972, a rather long time ago, and at a rather young age. So one might be tempted to draw a veil over the episode. But not Samuel Alito. It seems that then-Mr. Alito was still bragging about his anti-woman-at-Princeton membership in 1985, when applying for legal work in Meese’s Justice Department. (And it probably was a shrewd move, too. In any case, he got the job.)
In that same 1985 application, Alito made a point of stating that “I personally believe very strongly” that the Constitution doesn’t guarantee a right to abortion. Again, not alone likely to be a disqualification; many people believed that then, many do today, including some who would follow Casey‘s re-affirmation of Roe despite their personal beliefs.
What’s most troubling here is Alito’s explaining this ‘deep personal belief’ away when visiting when Senator Specter. He doesn’t say he’s changed in the intervening 20 years. He doesn’t say, personal beliefs don’t necessarily decide cases, personal beliefs then may not control legal decisions now — which would have left the issue open. (And he certainly doesn’t say he’s changed or grown in 20 years — that might startle the base.) Rather, today Judge Alito says that what he said 20 years ago should be ignored: “I personally believe very strongly” was just language used by an advocate seeking a job.” What does that mean? He was lying? Puffing? Being parsimonious with the truth? But we should believe him now because he’s a judge seeking a much better job?
Until now, the largest eyebrow-raiser on the record was Alito’s (inadvertent? careless? forgot his $390,000 in Vanguard funds? forgot his pledge to recuse to the Senate?) failure to recuse himself in a case (more than one case?) where you might have expected him to — and especially what has been suggested was Alito’s unjudicial peevishness at being called on it.
On its own, the keeping-your-pledge didn’t look like nearly enough to torpedo the Alito nomination; but combined with the veracity issue…it starts to look like a counter-narrative….
[On the other hand, I think there’s a danger of making too much out of an opinion Judge Alito signed but didn’t write — United States v. Jasin, 280 F.3d 355 (3d Cir. 2002). Frank Menetrez’s account of the case makes the decision look terrible, and on my somewhat hasty reading the opinion is at best infelicitous and skates lightly of the facts, and the third judge certainly wasn’t buying it. But, the basic legal principle enunciated, that the post-conviction exculpatory testimony of alleged co-conspirators may not qualify as “newly discovered evidence” for the prudential reasons mentioned in that opinion is one that I think a reasonable person could hold, even if it was applied with excessive gusto and insufficient attention to the actual facts in that case. Note that even the concurrence agreed with the result, just for a different reason. To me, this opinion alone is not a smoking gun — it’s at most a note or two in a somewhat harsh symphony.]
Who is Alito and his supporters kidding?
There is a litmus test for them too, Alito meets it, but darn if they don’t want to admit it. Apropos to Jack Balkin, the new rule is “Roe/Casey survives, but we find loads of exceptions ala Miranda,” the whole thing is sort of besides the point anyway, hmm?