JUAN GONZALEZ: On Wednesday, Democratic Senator Edward Kennedy asked Alito more questions about his connection to the group.

SEN. EDWARD KENNEDY: You have no memory of being a member. You graduated from Princeton in 1972, the same year C.A.P. was founded. You call C.A.P. a conservative alumni group. It also published a publication called Prospect, which includes articles by C.A.P. members about the policies that the organization promoted. You’re familiar with that?

JUDGE SAMUEL ALITO: I don’t recall seeing the magazine. I might have seen it at some point.

SEN. EDWARD KENNEDY: Did you know they had a magazine?

JUDGE SAMUEL ALITO: I’ve learned of that in recent weeks.

SEN. EDWARD KENNEDY: So in 1983 Prospect essay titled “In Defense of Elitism” stated, quote, “People nowadays just don’t seem to know their place. Everywhere one turns Blacks and Hispanics are demanding jobs simply because they’re Black and Hispanic. The physically handicap are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children.” Did you read that, that article?

SEN. DIANNE FEINSTEIN: Finish the last line.

SEN. EDWARD KENNEDY: Finish the last line — is, “and homosexuals are — ”

SEN. DIANNE FEINSTEIN: No. “And now, here come women.”

SEN. EDWARD KENNEDY: If the senator would let me just —

SEN. DIANNE FEINSTEIN: Yes, I will.

SEN. EDWARD KENNEDY: Can I get two more minutes from my friend perhaps? Just to continue along — I apologize, Judge — did you read this article?

JUDGE SAMUEL ALITO: I feel confident that I didn’t. If I — if that —- I’m not familiar with the article. And I don’t know the context in which those things were said. But they are antithetical to -—

SEN. EDWARD KENNEDY: But could you think of any context that they could be —

JUDGE SAMUEL ALITO: It’s hard to imagine. If that’s what anybody was endorsing, I disagree with all of that. I would never endorse it. I never have endorsed it. Had I thought that that’s what this organization stood for, I would never associate myself with it in any way.

SEN. EDWARD KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking. It announces that a team of doctors has found that AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings. The article then goes on with this terrible statement: “Now the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps the gay Princeton’s Gay Alliance may want to hold an election.” You didn’t read that article?

JUDGE SAMUEL ALITO: I feel confident that I didn’t, Senator, because I would not have anything to do with statements of that nature.

SEN. EDWARD KENNEDY: In 1973, a year after you graduated and during your first year at Yale Law School, former senator, Bill Bradley, very publicly disassociated himself with C.A.P. because of its rightwing views and unsupported allegations about the university. His letter of resignation was published in the Prospect, garnered much attention on campus and among the alumni. Were you aware at the time of that at the time you listed the organization in your application?

JUDGE SAMUEL ALITO: I don’t think I was aware of that until recent weeks, when I was informed of it.

SEN. EDWARD KENNEDY: And in 1974, an alumni panel, including now Senator Frist, unanimously concluded that C.A.P. had presented a distorted, narrow, hostile view of the university. Were you aware of that at the time of the job application?

JUDGE SAMUEL ALITO: I was not aware of that until very recently.

AMY GOODMAN: That was Supreme Court nominee, Samuel Alito, being questioned by Senator Ted Kennedy. Kennedy later criticized Alito, telling reporters outside, quote, “He can remember all 67 dissents in great detail, but he can’t remember anything about this organization.” Later, during the hearing, Kennedy got into a heated argument with the Senate Judiciary Chair, Arlen Specter, the Pennsylvania Republican, after Kennedy claimed the Chair had failed to honor his request to subpoena records regarding the Concerned Alumni of Princeton.

SEN. EDWARD KENNEDY: Mr. Chairman, if I could have your attention. I think we ought to vote on issuing a subpoena to the custodian of those C.A.P. records. And I want to do that at an appropriate time. I move that the committee go into executive session for the purpose of voting on the issue and seeing — the sole purpose for issuing the subpoena of those records.

SEN. ARLEN SPECTER: Well, we’ll consider that, Senator Kennedy. There are many, many requests, which are coming to me in 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. You’ve never mentioned it to me. And I do not ascribe a great deal of weight. We actually didn’t get a letter, but —

SEN. EDWARD KENNEDY: You did get a letter. Are you saying?

SEN. ARLEN SPECTER: Now, wait a minute. You don’t know what I got. I’m about to tell you.

SEN. EDWARD KENNEDY: Of course, I do, Senator, since I sent it. I’ve got it right here.

SEN. ARLEN SPECTER: Well, the senator doesn’t necessarily know what the recipient gets, Senator Kennedy.

SEN. EDWARD KENNEDY: I’ve got it right here.

SEN. ARLEN SPECTER: You are not in a position to say what I receive. If you’ll bare with me for just one minute.

SEN. EDWARD KENNEDY: But I am in a position to say what I sent to you on December 22. So I renew my —

SEN. ARLEN SPECTER: You’re in a position to tell me what you sent.

SEN. EDWARD KENNEDY: I renew my request, Senator. And if I’m going to be denied, then I’d ask — I’d appeal the decision of the Chair. I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination. This nominee has indicated he has no objection to us seeing these issues. We’ve gone over the questions. And we are entitled to get that kind of information. And if you’re going to rule it out of order, I want to have a vote on that here on our committee.

SEN. ARLEN SPECTER: Well, don’t be premature, Senator Kennedy. I’m not about to make a ruling on this state of the record. I hope you won’t mind if I consider it, and I hope you won’t mind if I give you the specifics that there was no letter, which I received. I take umbrage at your telling me what I received. I don’t mind your telling me what you mailed. But there is a big difference between what’s mailed and what’s received, and you know that. We’re going to move on now. Senator Grassley?

SEN. EDWARD KENNEDY: Well, Mr. Chairman, I’d appeal the ruling of the Chair on this.

SEN. ARLEN SPECTER: There’s been no ruling of the Chair, Senator Kennedy.

SEN. EDWARD KENNEDY: Well, what is the —- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress, that purpose and that purpose only. And if I’m going to be denied that, I’d want to give notice to the Chair that you’re going to have 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. I think it’s -—

SEN. ARLEN SPECTER: Well, Senator Kennedy, 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. We’re in the middle of a round of hearings. This is the first time you have personally called it to my attention. And this is the first time that I have focused on it. And I will consider it in due course.

AMY GOODMAN: That was Senate Judiciary Chair Arlen Specter responding to Senator Ted Kennedy. Later, Specter acknowledged his office had received the letter and that his staffers were obtaining the records for the committee without a subpoena. To discuss the significance of Alito’s connection with Concerned Alumni of Princeton, as well as other issues, we’ll be joined by a number of guests after break.

[break]

AMY GOODMAN: To discuss the significance of Samuel Alito’s connection with the Concerned Alumni of Princeton, as well as other issues raised during the Supreme Court confirmation hearings we’re joined by two guests: Jamin Raskin joins us in Washington, Professor of Constitutional Law at American University School of Law, author of Overruling Democracy: The Supreme Court vs. The American People; and here in our Firehouse studio, we’re joined by Ted Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund. He is scheduled to testify at the Alito hearings tomorrow. We welcome you both to Democracy Now!

Let’s start with Ted Shaw. Your response first to this whole discussion about the group, Princeton alumni, the Concerned Alumni of Princeton, and the other key issues that your organization has considered, after coming out against the nomination of Judge Alito to be Supreme Court justice.

TED SHAW: Well, thank you, Amy, and good morning to you. One of the things that was clear as the record developed yesterday during the hearings was that it’s incredible to think that the nominee has no memory of this group. And what’s interesting about it is he says he has no memory of being part of this group; on the other hand, if he was part of it, it was because of the ROTC concerns on the Princeton campus.

This was a group that got a lot of attention. It was very controversial, as we heard in the lead-in. Bill Bradley distanced himself from this group. So it really strains credibility to think he has no memory. He put it down on his job application, because it was significant to him. And it was significant, because he thought that it would help him in positioning him with getting a job with the Reagan administration Justice Department.

Now, I left the Justice Department in the early 1980s because of the policies of the Reagan administration and civil rights. I was in the civil rights division. I remember the ideological climate at the time. And there were young go-getter conservatives who would do anything to position themselves, but they were also true believers.

I really don’t think that this is the issue that the Legal Defense Fund would spend most of its time on. It’s covered in our report. But it has emerged as a significant issue, because it’s a credibility issue. We’re more concerned now with the record that Judge Alito has on the Third Circuit Court of Appeals, which indicates that, for the most part, his vote has not been in play on behalf of African Americans and women, other minorities, in discrimination cases. That’s our concern.

This is not a stealth candidate. This is somebody with a well-established record. We think his confirmation to the court will move the court significantly further in a direction in which it would be very, very difficult for African American, Latino, women, people who are disabled, to win claims of discrimination, because — for whatever reason. I can’t peer into his mind — for whatever reason. He has a record of ruling in favor of defendants in these kinds of cases. So that’s the basis on which we’re opposing this nomination.

This is a court that has been narrowly divided in race discrimination cases for 25 years, 5-4 decisions in almost every major case. So we believe that his confirmation will move the court much further to the right, because Justice O’Connor is a conservative justice already; he’s even more conservative than Justice O’Connor.

JUAN GONZALEZ: In your report, you go through the history of cases that Judge Alito was involved in, both on the bench, as well as in the Justice Department. And you go in-depth into some cases: the Sheet Metal Workers Union discrimination case that dates back to the 1970s, and also to the famous firefighters case in Cleveland, Ohio, where in both cases the judge really seemed to be at the extreme measure — at that time he was in the Justice Department — at the extreme end on affirmative action. Could you talk a little about specifically the positions that he took then?

TED SHAW: Well, as a Justice Department lawyer, when he was recommending what positions the department should take, he was a clear opponent of affirmative action. That’s why this whole issue of C.A.P. is significant, in part, because his views as a Justice Department lawyer are remarkably consistent with what he has done on the bench. He has been an opponent of affirmative action. So, those memoranda from the Justice Department days indicate that. On the bench he has been more conservative than conservative judges. So often he has been a dissenter from opinions in which some of the conservative judges ruled in favor of civil rights claimants.

And when he has ruled in favor of civil rights claimants, it’s been in cases that have been slam dunks. It would be almost impossible to go the other way. In fact, one of the significant things we point to is that in 15 years on the bench, he has only ruled on the merits for African American plaintiffs in employment discrimination cases twice. That’s a record that is significant. So, you know, you can’t change that. You can’t get around it. For whatever reason, he has indicated this leaning which causes us legitimate concern about what he would do on the Supreme Court.

AMY GOODMAN: We’re also joined by Jamin Raskin in our Washington studio. Your major concerns as you follow this hearing, but, of course, assess Samuel Alito’s record before this week.

JAMIN RASKIN: Well, the testimony was definitely not credible. I mean, to say that he was a member of the Concerned Alumni of Princeton in the 1980s, and bragged about it in 1985, because of ROTC being off campus for a couple of years in the 1970s is just completely farfetched. It’s like saying someone is joining MoveOn.org in 2006, because they’re opposed to the Republican impeachment effort against Bill Clinton in the 1990s. So, the testimony did not add up, and he was a tense and nervous witness in talking about all of those things.

But I would echo Ted’s sentiment here, that in a certain sense it’s kind of a sideshow. Our position on this kind of structuring in order to determine his views would be that this is kind of guilt by association. Of course, the Bush administration thinks that this is enough to declare people terrorists, because they’re members of groups, even if they don’t adhere to everything that the group does, even if they don’t know what all the ideological planks are. But, from our perspective, I think that it would be enough just to look at the public record, that is, what do the cases say?

And if you don’t think that this is a judge interested in overturning Roe v. Wade based on his opinion in the Casey decision that started in the Third Circuit or based on his statements in Department of Justice briefs, you’re too innocent to be let out of the house by yourself. It’s very clear that he thinks Roe v. Wade is not anchored in the text, the history, the structure of the Constitution.

And also, I was extremely disturbed by his answers to Senator Specter’s questioning yesterday about a series of cases where the Rehnquist court has been dismantling federal statutes, like parts of the Violence Against Women Act, the Religious Freedom Restoration Act, the Gun-Free School Zones Act. The Rehnquist court is perhaps the most activist court in American history, in terms of dismantling acts of Congress. And in questioning Alito directly about that, Alito essentially took the position that the Supreme Court’s test about congruence and proportionality got it right in terms of what Congressional powers under the 14th Amendment are. And so, that was extremely sobering and disappointing, as well.

But, in truth, we know exactly why Alito is there. This is the Federalist Society dream candidate for the Supreme Court. They’ve dressed him up for the confirmation hearings, but he is a rightwing ideologue in black robes.