Judge Alito and the Concerned Alumni of Princeton

Marty Lederman

There's a good deal of discussion recently about Judge Alito's membership twenty years ago in the Concerned Alumni of Princeton, a group apparently devoted to the retention of quotas that had long excluded women and minorities from Princeton.

I know very little about CAP and its policies other than what I've read in hilzoy's informative post here. And I know even less about the reasons for, or extent of, Judge Alito's involvement in CAP. (Quick legal question, however: Why wouldn't such quotas have been flatly illegal under title VI of the 1964 Civil Rights Act (race discrimination) and title IX of the Education Amendments of 1972 (sex discrimination)? I know there's an argument that title IX doesn't bar private, single-sex colleges from receiving federal funds -- although I think the question is much more difficult than most people assume -- but race discrimination? Or quotas aganst women if the college was already coeducational? Didn't Princeton receive federal funds?)

But even if there is an innocent explanation for Alito's CAP involvement, and/or it can simply be chalked up to the mistakes of one's "youth" -- notwithstanding that the person in question was in his mid-30s and had already been representing the United States before the Supreme Court for several years -- shouldn't the following two things be much more troubling than the CAP membership itself?:

First, Alito singled out -- trumpeted, even -- his CAP membership in order to brandish his conservative bona fides when applying for a job as Deputy AAG in the Office of Legal Counsel in the Reagan Administration. That is to say, he took pains to wtite -- presumably with sincerity -- that such membership in an organization of questionable repute -- along with the fact that the "greatest influence on [his] views" included the Bill Buckley National Review of the early 1960's, which was also virulently opposed to the civil rights movement -- demonstrated his ultra-conservative qualifications for a high-level government position in OLC, an office that (as much as any office in the Executive Branch) is supposed to answer legal questions objectively. (As T.R. Goldman writes, "[t]he irony is that Alito's ideologically charged application was for a job in a venerable and long-standing Department of Justice office whose mission usually involves nondescript legal analysis. 'It was the ultimate mismatch between that application and the job Sam and I were asked to do,' notes Pepperdine University law professor Douglas Kmiec, who was a deputy assistant AG at the OLC with Alito. . . . 'OLC was designed to be an objective appraiser of the law, a place inside a political administration where policy people can come and say, "OK, we'll ask the lawyers what the law requires."'" Apparently, Alito's conservatives credentials were suspect because he had spent so much time acting in a nonpartisan capacity in the SG's Office and had attended Yale Law School. Goldman reports Alito's supporters as explaining that "without a political track record, Alito had to put his best conservative face forward"; thus, "the job application's intensely ideological tone." My own favorite bit in his OLC application is the not-so-subtle suggestion that his excuse for having attended Yale was that Alex "Passive Virtues" Bickel was teaching there.)

In his mid-30's, a seasoned Samuel Alito, already having served in a position of great responsibility for the U.S. government for several years, chose to affirmatively brag about -- rather than to apologize for -- his membership in CAP, and about his enthusiastic embrace of the early 1960's National Review, because he thought that, of all his many attributes and accomplishments, those things would serve to demonstrate his credentials for a high OLC post.

Second, and more surprising still, in the completed questionnaire that Judge Alito submitted to the Senate Judiciary Committee this week, he writes this about CAP (at page 7):

Concerned Alumni of Princeton . . . was a group of Princeton alumni. A document I recently reviewed [presumably his OLC application?] reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group. The group has no current officers from whom more information may be obtained.

(Hat tip: Orin K.) So, in 1985 he determined that this membership was one of the small handful of facts that most qualified him for one government post in which his job would be to impartially interpret the law; and 20 years later, when applying for a similar, if more important, legal post, he has no recollection of that membership other than from the 1985 application itself?

This seems very hard to believe. From everything I've heard, however, Judge Alito is an honest and straight-shooting fellow; so I'm willing to assume that his CAP membership and participation were so fleeting, so negligible, in the 1980s that he truly does not recall them now, 20 years later. But, if that's indeed the case, what does that say about his citation of his CAP membership on his OLC application back in 1985, in order to demonstrate how died-in-the-wool conservative he was? The whole incident is very odd.

P.S. Just to be clear: I'm not suggesting that being fond of the early-60's National Review as a teenager should disqualify someone for a Supreme Court seat forty years later. But going out of one's way in the mid-80s to emphasize how one's philosophy was formed by that youthful dalliance with such a periodical? And doing so in order to demonstrate one's fitness for an high-level OLC post? Well, that's something else entirely . . .
Posted 10:00 PM by Marty Lederman [link]