Tuesday, January 17, 2006
Samuel Alito found his experience at Princeton University in the late-60s and early 70s so jarring he mentioned it in his opening statement to the Senate Judiciary Committee:
[I was an undergraduate at Princeton] in the late 1960s and early 1970s. It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.
This is an interesting, fascinating and powerful statement. Though the above may seem to be an innocuous biographical observation, it is, indeed, a powerful key to understanding Samuel Alito's temperment and judicial character. In fact, the above statement makes a powerful implicit argument against Alito's nomination to the Supreme Court. Let's take a look.
First of all, the late 60s and early 70s were "a time of turmoil" at colleges and universities in the United States. Any honest assessment, of course, would allow that the late 60s and 70s were a time of turmoil for the nation as a whole.
What does it mean, then, that Judge Alito talks about a period that encompasses Civil Rights, the Viet Nam war, political assassinations and a broad social movement towards women's equality in the workplace and the home as if it the turmoil of the era belonged to campuses? That is the essential question here, and one that points us to the core of this essay.
The force of Alito's statement flows from the powerful contrast he creates between "very smart and very privileged people" at Princeton whose "irresponsible behaviour" stands in opposition to the "good sense and decency of the people" back in Alito's own neighborhood. (One can only imagine what Judge Alito means by "the worst of what I saw on campus"...a vague and nebulous phrase that seems to imply a scene out of a Goya etching.) But before we judge the accuracy and fairness of Alito's assessment of Princeton at that time, let's arrive at a good faith understanding of what Samuel Alito meant to convey to the Senate.
I do not think that Alito meant to imply that the campuses alone saw turmoil. What I think he was trying to tell us is that given the turmoil of the times and the relative privelege of his classmates at Princeton, Samuel Alito was struck by qualities of irrationality, abuse of privelege, and disrespect for law, tradition and order in his classmates. These qualities, which we might more properly call perceptions, formed a contrast, in his mind, to the world of his upbringing; a world he is comfortable holding up to the nation as a bastion of both "common sense"...ie. rationality...and "decency"...ie. morality.
What Alito was trying to communicate to us is that this contrast, this perception formed at Princeton, actually forms the cornerstone of how Judge Alito sees himself, our nation, and the world. Samuel Alito is telling us that his experience at Princeton was, for him, a defining ideological moment, and the legacy of his perceptions there, whatever their validity as historical observations, have formed the lens through which he views the United States and our recent political and cultural history.
It is essential to note that Alito is not simply valorizing his middle class upbringing in New Jersey. To do so he could have simply have said as much directly. Alito's message is more ideological than that. Instead, Alito is saying is that the people of his neighorhood represent a "a clear positive good" that informs his opposition to the "noxious ills" of the irrational abuse of privelege he saw in his fellow students at Princeton. Further, very much like the political theorist Edmund Burke, Alito distinctly associates those students with the turmoil of the late 60s and 70s. The unspoken inference of Alito's statement is that had American society hewn more closely to the values of his neighborhood we might have avoided the upheaval of the 60s and 70s.
That statement, and what it implies, are worth thinking about. Not only does it represent a particular ideology (...ah, but for the good old days of the 1950s...) and a kind of intellectual dishonesty unfair to his classmates and unbecoming of a Supreme Court Justice. It is also ahistorical and untrue.
It is a very different thing to talk about that late 60s and 70s through the lens of one student at one Ivy League campus, than to assess it as a historian, or, indeed as a Supreme Court justice must. That seemingly minor quibble, however, actually embodies deep and grave concerns about what led Samuel Alito to say what he did to the Senate and why he is unsuitable for the Court.
The entire frame that Alito presents in this deeply political and tactical statement is dishonest. Just as the French Revolution could not have simply been concocted by Left Bank pamphleteers, though it was undoubtedly influenced by them, the turmoil of the 60s and 70s was not the product of "campus liberals." In fact, using the goings-on at Princeton University as a frame through which to judge the enormous changes in American political and social life in the post-war period is nothing more than a way of hiding one's real views.
Think about it this way. What if Alito's classmates at Princeton had held the same political views but had behaved in a manner more acceptable to the young Alito's sensibilities? He would have had to debate them, of course. In point of fact, millions of students across the country, from his same background, did just that. Any accurate social history of the era is drowned in tedious examples of "idealistic" and "well behaved" student protest and political expression. It was the exceptions that made the news, and that have been replayed ad nauseum in the public imagination by ideologues like Alito and his defenders
(As an aside, let's get real...one only has to think for about five seconds to understand that "privileged students behaving irresponsibly" at an Ivy League school is something that occurs regardless of ideology. In this, the judge simply makes no sense.)
The troubling fact here is that Judge Alito has disguised his real disagreement with his fellow students' political views inside a mischaracterization of their behaviour and a false implication of their lack of morals and rationality. Judge Alito is speaking in code when he uses "what he saw" in Princeton elites as a reflection of the turmoil of the times and the errors of their views. He is creating a straw man that cannot defend itself because his "political opponent" is no real person, but a mere set of impressions formed in his young mind.
It would be much more honest for Judge Alito to debate the issues that roiled Princeton in his day in a straightforward manner. Bill Bradley attended Princeton just before Samuel Alito. Are Senator Bradley and his liberal views representative of the "bogeyman" that Alito seeks to create in the public mind? Would Alito care to debate Senator Bradley on civil rights, on the Viet Nam war, on privacy and women's equality...on Roe..or Miranda or Griswold...?
I am not saying that Judge Alito would not have valid and interesting arguments in opposition to his former classmates. What I am saying is that his mischaracterization of those classmates represents a fundamental intellectual dishonesty. And this is no small thing. In portraying real disagreement as a blanket character flaw, as a moral and rational failing, Judge Alito makes a mistake no judge should ever brook; in smearing his Princeton classmates, Judge Alito attacks the person and not the substance of their arguments.
Princeton elites, of course, can defend themselves.
What is truly troubling about Alito's use of this statement in making the case for his confirmation to the Supreme Court, is that he has couched his political disagreements in terms that imply a history of his own background that is a fantasy.
In fact, the turbulent forces at work in American society in the late 60s and 70s had their most marked impact in millions of suburban homes.
Birth control. Abortion. Divorce. Women entering the work force. Desegregation of school districts. Civil Rights leglislation. Opposition to the draft. Drug use. The Viet Nam War on nightly television and growing popular opposition to the war.
In every case, the turmoil of these issues touched and roiled the people of the suburbs. In every case, American life was fundamentally changed from the 40s and 50s. It is one thing to make an intellectual argument that one would like to try to make society resemble what one's impression of life was like in the American suburbs before these broad realities changed them forever; there are many Americans who would be sympathetic to just that notion. But it is a lie, a fantasy, and a fabrication of our history to pretend that the suburbs in the 60s and 70s were placid worlds that stood for all that was "moral and good" while the rest of the nation roiled with unspeakable turmoil.
The disconnect is jarring.
In point of fact, the very decisions that Judge Alito and his Federalist allies refuse to wholeheartedly endorse, decisions that embody that era...Brown, Griswold, Roe, Miranda, Bakke... are much more the product of the world Samuel Alito comes from, ie. the world of the people who built the American post-war suburbs and the people who were shaped by that world (most of them seeking an island of stabilty after WWII and the Great Depression)...than anything Alito saw in his Princeton classmates.
And that gets to the core of this essay. One might take away the impression from Judge Alito and his conservative brethren, that the Warren and the Burger courts, ie. where their real disagreements lie were somehow the direct products of the 60s and the 70s...of "the worst of what he saw" at Princeton.
They weren't. The decisions handed down by these courts had nothing to do with the campus turmoil of his day. In fact one of the biggest fabrications of our day is the ongoing myth perpetrated by conservatives that they are in sharp opposition to "hippies" and "liberal elites" of the 60s and 70s. They aren't. The hippies and the elites lost. Current day conservatives are in opposition to the WWII / Great Depression generation and its legacies. If Judge Alito were intellectually honest, he would state forthrightly where his real disagreement lies.
Judge Alito's beef is with the men who made up the Warren and the Burger courts. Justices who lived through the Depression and the Second World War and looked out at American society and shaped the decisions that, in many ways, shape us. Roe has everything to do with men like Harry Blackmun and Warren Burger and very little to do with Gloria Steinam and Abbie Hoffman.
If Judge Alito were honest, he would state his disagreement with these justices clearly and let the nation make up its mind about his views. Our nation might be the better for a clear debate on the issues. But, like his conservative colleagues, Judge Alito is not willing to be forthright. In fact, his story is meant to tell us expressly how deeply his bias willingly informs his views. And that is the crux of the matter.
Judge Alito reveals in this biographical aside no less that three characteristics that should disqualify him from serving as a Justice on our Supreme Court.
First, Alito mischaracterizes our history in a way that is unforgiveable for a potential Supreme Court Justice. Justices must understand our history if they are to understand the law.
Second, Judge Alito hides his legal disagreements behind cultural cliches and vilification, instead of debating his views outright. In fact, in refusing to take on the Warren and Burger courts directly, Alito hides where his real legal disagreement lies. Of course, if Alito said what he really thought about the decisions of the Warren and Burger courts, he might not be confirmed.
Third, and most significantly, in telling this Princeton story, Judge Alito does what no judge should ever do:
He privileges his judgment of a group of citizens' inherent "reasonableness" and "morality" over a debate about the ideas and merits of their arguments. Alito allows his personal preference for his neighbors to overrule a fair debate of the merits of their views. Quite frankly, it is no small thing to this country that one's neighbors can be "nice" and "reasonable" and, at the same time, utterly wrong. Our history is rife with examples of just this reality. It is also conversely true that a seemingly loud and troublesome agitator can, in fact, be speaking the truth.
It is the more disturbing implication of Alito's statement that he imbues his neighbors with a saintly reasonableness and morality, than that he lambastes his classmates. (One can be quite sure that Alito saw some things at Princeton that troubled him. Fair enough.) Judges, however, see much that is troubling about our world.
And the world that the Warren and Burger courts came out of was a very troubling world. (It is precisely that world, however, that Alito now valorizes and invests with a utopian perfection.) The Depression and WWII era was a world far from perfect, or moral, or just.
Those justices, however, knew what anyone who has looked honestly and authentically at any human society has seen; that we humans are far from perfect and that the arbiters of the law need to bring a broad understanding of the depth of human contradictions and hidden social realities to their assesments of the merits of any case. Far from being blind, a Justice must, above all, look on our society with an unjaundiced eye and seek to understand what he or she sees there. That is the only way to truly judge the merits of a case.
What troubles me, then, is what Judge Alito seems deliberately not to have seen in the suburbs of his youth. What disturbs me is the clouded and ideological lens that he seems to relish looking at our society with. Oftentimes it is exactly what we refuse to see in our lives, our neighbors, and our world that is speaking to us with the clearest message. It is not so much what Judge Alito saw at Princeton, but what he didn't see or learn from his neighbors that is cause for concern.
For a Supreme Court Justice, there is no higher duty than to look out at this nation and its citizens and seek to understand in honest and simple terms how the law impacts our lives.
Justice may, indeed by blind, but the Supreme Court is no place for someone who refuses to undertake the broad task of seeing our society with unbiased eyes.
The Supreme Court is no place for an ideologue.