The CAP flap

Back when open bigotry against women and racial minorities was fashionable, Samuel Alito joined a group that wanted to keep women and minorities out of Princeton. Ten years later, he used that membership to show the paleoconservatives then running the Reagan Administration he was one of them. Now, he’d like to forget it. Democrat’s won’t let him. McCarthyism? I don’t think so.

The Senate Democrats have finally focused on Samuel Alito’s membership in the Concerned Alumni for Princeton — including his boasting about that membership when he was seeking a job in the Reagan Administration and his subsequent attack of Waldheimer’s Disease concerning just what the group stood for — as a reason to oppose his confirmation for a seat on the Supreme Court.

Conservatives, including Volokh Conspirators Orin Kerr, Todd Zywicki, and David Post, are shocked and appalled. Post and Zywicki compare the tactic to McCarthyism, apparently on the theory that McCarthy’s wrongdoing consisted entirely of holding people accountable for their past organizational memberships; Kerr thinks it’s more like the Swift Boat libel against Kerry:

The basic idea underlying the claim seems to be roughly the same: Decades ago, the nominee did something or took a position that reveals a very deep and extremely serious character flaw. Granted, the nominee has shown only very subtle hints of this character flaw since then. But, critics say, that’s only because he is super-clever at disguising just how evil he is. If we look really hard, we can realize that the nominee’s impressive record is really a facade hiding something very sinister. That was the bogus claim about John Kerry in the 2004 election, and that is the bogus claim about Samuel Alito now.

Note that the exchange over Fred Fisher, which Zywicki quotes, involved someone with no connection whatever to the hearings, who just happened to be an associate at Welch’s law firm. Dragging out his past membership in the National Lawyers’ Guild was in fact just what Welch said it was, an act of reckless cruelty. (Not as cruel as Welch’s own gay-baiting of Roy Cohn, but cruel and reckless just the same.)

But of course Alito’s opinions and character are precisely at the center of the current hearings, so Zywicki’s and Post’s comparison to McCarthy falls completely flat.

As to Orin Kerr’s comparison to the Swift Boat affair, I am not aware of any Democrat who argued that Kerry had in fact been a coward and a liar in 1970 but that his character had improved since. Instead, we argued that he was a hero and a truth-teller then, and that all the lying came from the Swiftboaters. (The fact that Kerry remembered spending Christmas Eve in Cambodia when in fact he had spent Tet in Cambodia established only his fallibility, not his mendacity, though Eugene Volokh among others seemed confused on that point.)

Alito’s membership in CAP is an especially painful issue for his supporters because CAP revealed starkly a truth about conservatism that most contemporary conservatives prefer to hide. That dirty little secret is that, in addition to its intellectual content, conservatism as a political tendency and a movement has a social content. The social content of conservatism is partiality toward those of higher status and greater social centrality and hostility to those lower down the social scale and further toward the margins: rich over poor, white over black, Anglo over Latino, Christian over Jew, Muslim, Hindu, pagan, or atheist, straight over gay, male over female. (Of course, that’s a U.S.-centric list; a “conservative” in India favors Hindus over Muslims, while a “conservative” in Pakistan has the reverse preferences.)

Paleoconservatives tend to be more explicit about those preferences, while neoconservatives and libertarians are generally more shamefaced about them. The neos and libertarians loudly argue that they merely support neutrality and a limited state, and ignore the fact that “neutrality” as between the more powerful and the less powerful is neutrality with a bias.

Now the Concerned Alumni for Princeton was about as paleo as they come, this side of the KKK. It explicitly opposed equal-opportunity admissions to Princeton for fear that the place would be overrun by women and minorities. (A generation earlier, that would have been “overrun by Jews and Catholics,” but it is part of the genius of conservatism to adopt formerly marginal groups as “honorary whites” as necessary to fight newer threats.)

Alito, as a student and recent alumnus, was a member of CAP. That reflected bad judgment, at best; Bill Frist, at roughly the same time, was denouncing the group for its extremism and dishonesty.

Arguably, that could be passed over as a youthful indiscretion. But Alito, as a thirty-something lawyer bucking for a job with the Reagan Administration, boasted about his CAP membership as a way of displaying his paleo credentials to what was an extremely paleo ruling clique.

Now, of course, that sort of thing isn’t very fashionable. So, naturally, Alito’s forgettery is working overtime trying to lose the issue, and Democrats are working overtime trying to push it. Both Alito’s eagerness to flash his credentials as a bigot in 1985 and his modified, limited veracity about the topic today are perfectly legitimate issues in considering him for the Supreme Bench.

McCarthyism? Not exactly.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: