Alito's Discrimination Problem

JURIST Guest Columnist David Kairys of Temple University School of Law says that the Senate should fully examine Judge Samuel Alito's views on race and gender discrimination - strangely shaped in the turmoil of the 1960s - before voting on cloture or confirmation...



It can be baffling, even disturbing, to discover that the pivotal period and events of your life played the same role for someone who rejects pretty much all you hold dear. It's worse if he's a nice guy. Nasty or degenerate opponents are much easier to understand, and more fun.

How could a decent person like Judge Samuel Alito — who lived through the civil rights years as a student, and whose Italian-immigrant family suffered discrimination — be so hostile to discrimination claims of minorities and women, and to the claim of exclusion of African American jurors in a criminal trial? And how could he in the 1980s boast about his earlier membership in a group that lamented the bygone days of racial and gender exclusivity at Princeton?

Sure, Alito is conservative, very conservative, but supporting segregation, and being proud of it in the '80s? How could this be?

The answer, my friend, is in the '60s.

Alito didn't reveal much of himself that's personal or political at his confirmation hearings, and the senators didn't push him to do so. But his opening statement, where he addressed what he finds important in his own words, is revealing in ways that have largely gone unnoticed.

Alito described his student days at Princeton in the '60s and early '70s as a formative period. In that time, others of Alito's generation found America's century-old racial segregation unacceptable and worked, often at personal risk, for equality. They also convinced a majority of Americans to oppose the Vietnam War.

But there's no mention in his opening statement of Alito's playing any role in — or having any sympathy for — the downfall of racial segregation, nor of his taking any actions or position on the war.

The period had a major impact on him for another reason: there was "turmoil" he blames on "irresponsible" students, whom he pointedly contrasts to "the decency of the people back in my own community."

Alito characterized the period exclusively in terms of turmoil, and he was oddly selective about the types and sources of turmoil that matter to him. He didn't mention the turmoil arising from the assassinations of Martin Luther King, Jr. and Bobby Kennedy while he was a student, from legally enforced racial segregation, or from the loss of over 50,000 Americans in the Vietnam War.

And he blames the messenger, the demonstrator — in legal terms, the plaintiff — who challenges the powers that be or the status quo, even a status quo so fraught with undeniable injustice and suffering.

There certainly was turmoil, and some student excesses. But that's a strange and revealing way to describe a difficult period of long-overdue transition of our institutions and way of life to what we now commonly view as a better America.

Then there's the matter of that group started in the early 1970s, referred to in the hearings as CAP, standing for Concerned Alumni of Princeton. CAP led to the only real fireworks in the hearings because the major concern of these alumni was their opposition to the admission of minorities and women to that formerly all-white and all-male university.

At Princeton and most universities, admission of minorities and women in more than token numbers had begun in only the previous decade — the '60s. These basic changes we're now used to are very recent — discrimination against women as jurors was upheld by the Supreme Court as late as 1961.

CAP opposed these changes, for which it and opposition to it gained considerable media attention. Bill Frist, now Republican Senate majority leader, was among prominent Princeton alums who publicly repudiated CAP.

This might be dismissible as an ambiguous and distant blip from Alito's student past had he not boasted about his role in CAP on his application for a job in the Reagan Justice Department in 1985 — almost two decades later, when CAP was a notorious symbol for resistance to racial and gender equality.

At the hearings, Alito said he remembered liking CAP's position in favor of the military's ROTC program, but no further details, although if he demonstrated anything by his long testimony, it was a topnotch memory. He offered no explanation for why he couldn't find a way to express himself about ROTC without joining a group that favored discrimination against minorities and women, or why he boasted about CAP later when ROTC was no longer an issue. He did not express any regret that he had been part of CAP, nor did he repudiate, even now, CAP's offensive positions.

All this can seem puzzling. But Alito's self-described formative experiences and values sound mainstream only because the history of '60s has been effectively re-written as if there was no mainstream opposition to integration.

In the 1960s and early 1970s, while the Ku Klux Klan often got the biggest headlines, "conservative" meant and was mostly defined by opposition to the civil rights acts and integration. It didn't describe every conservative, anymore than support for integration described every liberal. But racial equality, and later gender equality and the Vietnam War, were the defining issues.

The leading conservative in the law in recent times, the late Chief Justice William Rehnquist, wrote a memo in the 1950s as a law clerk to Justice Robert Jackson that opposed what would become Brown v. Board of Education, which integrated public schools. In another memo, Rehnquist advocated approval of the all-white Democratic primary system in Texas. The "separate but equal principle," Rehnquist wrote, was "right and should be reaffirmed." And a young moderate Republican congressman from Texas named George H.W. Bush voted against the Civil Rights Act of 1964, which prohibited discrimination on the basis of race in public accommodations like restaurants and gas stations.

Democratic President Lyndon Johnson, who presided over passage of the civil rights acts, saw the price liberals and Democrats would pay for leading the nation to finally deal with its racism. He predicted the rightwing shift and the "southern strategy" that now dominate elections and politics. It was and still is about the '60s.

But how could the son of Italian immigrants who experienced discrimination be so hostile to the earliest moves toward equality and later, as a judge, to the legal claims of people who experience race or sex discrimination? Alito's family, his upbringing, the experiences of his early years appear to be, as he also said in his opening statement, prominent in the development of his values.

The reaction of people who, or whose ancestors, have experienced discrimination or oppression is not as obvious or predictable as we often assume. Some people respond with an abiding understanding and sympathy for others who suffer the same fate. Martin Luther King, Jr. comes to mind as such a person — his movement for equality and justice embraced all here and abroad who were oppressed, including the Vietnamese.

Others respond by placing the highest priority on gaining acceptance for themselves; by identifying with the established, the elite, those who do things — and embody — the traditional, right way; and by distancing themselves from the oppressed — particularly those who complain about it — and from anyone who challenges the powers that be.

This is not unusual. It includes decent folks of my ethnicity and religion, whose families had suffered discrimination and genocide, but in the 1960s couldn't understand why anyone but African Americans would care about discrimination against African Americans.

A family's encounters with discrimination aren't necessarily forgotten by such a person, but they take on a new meaning. The family overcame without singing about overcoming at demonstrations or bringing a lawsuit. The significance of different contexts and specific obstacles faced by various minorities fades. The family's experience comes to represent what Alito called "the opportunities that our country offers," and complaining about discrimination becomes the sour grapes of those who aren't deserving. Victims of discrimination become its apologists. Some of them will also be nice guys.

But liberty and justice — and the Constitution itself — don't mean much if they don't apply to everyone. It took two centuries, a civil war and a successful civil rights movement for us to recognize that simple principle.

Have we really swung that far in the other direction? This nominee participated in a group like CAP and boasted about it decades later. At the hearings, he offered no explanation, no regrets, no hint of a change of heart, no repudiation of CAP's offensive positions — and in his decisions as a judge favored, often alone in dissent, evidentiary and procedural obstacles to race and sex discrimination claims, and to claims of racial exclusion from juries, that make them near impossible to succeed. Can a nominee to the Supreme Court with that record get by because he's smart, lawyerly, and seems like a nice guy? The Senate should fully examine the issue of race and gender discrimination before voting on cloture or confirmation.


Also by David Kairys:
David Kairys, a law professor at Temple University who has litigated leading civil rights cases, is the editor of The Politics of Law (Basic Books 1998). He's writing a book about civil rights lawyering in the 1960s and beyond.
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