Wednesday, January 11, 2006

Ted Kennedy: From Chappaquiddick to unlikely Morality Judge

In the Senate Judiciary Committee hearings today, Sen. Kennedy demanded a subpoena of records kept by the defunct Concerned Alumni of Princeton ("CAP")to see whether Supreme Court nominee Judge Samuel Alito was more active in the group than he has claimed. The group, which is thought to have started as a group with legitimate concerns about quotas being established at Princeton with respect to racial minority admission policies, had some members and perhaps leaders who wrote some things that were over the top. The story and today’s events were summarized reasonably well in today’s online San Francisco Chronicle:

Democrats have proved unable so far to land blows on Alito's judicial approach and record, and the move appeared to be a last-ditch effort to derail the judge's path to confirmation in the Republican-controlled Senate. The committee has scheduled a vote on the nomination next Tuesday followed quickly by a Senate vote Jan. 20, but Democrats have reserved the right to delay that by a week.
Showing the first signs of taking umbrage through hours of grueling testimony, Alito vigorously disavowed a 1983 essay from the group's magazine that Kennedy quoted, "In Defense of Elitism."
Alito said he disagreed with the entire quotation. "I would never endorse it," Alito said. "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."

The nominee had listed his membership in the group, known as CAP, on a 1985 job application to the Reagan Justice Department. Alito graduated from Princeton University in 1972, the year the group was formed.

But he has repeatedly testified to the committee that he does not recall his membership, and can only surmise that he may have belonged because of his ire over Princeton's policy of banning the ROTC from campus. Alito was a member of the ROTC and later served for eight years in the Army Reserve.

"I have racked my memory, and I can't recall anything," Alito told Kennedy again. "And if I had been involved actively in any way in the group, I'm sure that I would remember it."
Kennedy demanded that the committee go into executive session to vote on the subpoena [of the CAP documents], and warned committee chairman Arlen Specter, a moderate Pennsylvania Republican, that he would demand votes "again and again and again" until the matter was resolved -- a kind of mini-filibuster in the committee. [However, as reported here, the sought CAP documents seem to contain nothing harmful to Alito’s candidacy]
"Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again," Specter said. "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."

Sen. Charles Grassley, R-Iowa, comforted Alito with a football metaphor. He called the request a "desperate" attempt by Democrats to sack Alito after two days of failure to score.

"It's kind of like we're in the fourth quarter of a football game and you're the quarterback, and your team is way ahead here in the fourth quarter, and opponents are very desperate, keeping trying to sack you and aren't doing a very good job of it," Grassley said. "You're going to keep getting these last-minute Hail Marys thrown at you, so just bear with us."

As reported by Carolyn Lochhead at the San Francisco Chronicle.

Of course, what is of real inconsistency here is Senator Kennedy's purported disbelief that Judge Alito could have little or no memory of CAP. In the above referenced San Francisco article, we are told:

Kennedy expressed disbelief that Alito could recount details of each of his 67 dissents as a Third Circuit appellate court judge, but not his membership in Concerned Alumni of Princeton.

However, Senator Kennedy has had some memory lapses, over the years, of his own relating to events that were perhaps more memorable than CAP:

As a married, 37 year old father of three, after partying with a bunch of his married male friends and his deceased brother’s [Senator Robert F. Kennedy] presidential campaign's "boiler room girls," [as they were known at the time,all young and single], Senator Ted Kennedy was driving one of the young, single, ladies [Mary Jo Kopechne] somewhere [Kennedy was said to be taking Mary Jo back to the Motor Inn where she was staying in Edgartown] late in the evening . This was after a long day of sailing and partying-- and, as it turns out, Senator Kennedy was involved in the young lady's death.

Was Senator Kennedy responsible for Mary Jo Kopechne's death? Legally, there was no such finding. Morally, the jury still seems to be out. In part, this is because of the Senator's memory lapses as to what happened that night. Due to those memory lapses, we don't know all of the facts about what he did and why he didn't do what he should have done.

In that summer of 1969, shortly after taking the wrong turn, so to speak, and driving the car into the water, Poucha Pond, Ted Kennedy escaped the car, but his passenger and fellow party attendee, Mary Jo Kopechne, died, never making it out of the car. The legal finding was that she died from suffocation, but no autopsy was performed.

As summarized in the Wikipedia:

When the car was recovered, all the doors were locked and three of the windows were either open or smashed in. Investigators pondered how Kennedy, a large-framed, 6 foot 2 inch (1.88 m) man managed to get out of the car, but Kopechne, slender, 5 foot 2 inches (1.57 m) tall, was not able to do the same.[Emphasis added].

Kennedy claims he dove down several times attempting to free her [His famous line from his contemporary defense of his behavior on that night: “I dived repeatedly”]. After exhausting himself, he [claims he] rested for twenty minutes, then walked back to the Lawrence Cottage where the party had been held. At the Lawrence Cottage, aka: "The Party House", Kennedy asked for his cousin, Joe Gargan, and sat in the back of Kopechne's rental car, a white Dodge Valiant. [Ed. note: Doesn't that seem strange, wouldn't anyone in that situation rush into the party, asking for help from everyone there?] Though there was a working telephone at this location, none of the group phoned for police or rescue help.[Ed. Note: Nor, apparently, did Senator Kennedy, or those with whom he confided what had happened, think it useful to enlist any help from the others at the Party's location] Kennedy then returned to the submerged car with Gargan and Paul Markham who then resumed trying to reach her. The group claimed that the tidal current prevented them from reaching her.[Emphasis added].

Kennedy did not report the accident to authorities; they located him after the car and Kopechne's body were discovered by a science teacher and a 15 year old boy the following morning. He had, in the meantime, discussed the accident with several people, including Kopechne's parents, who say he omitted to tell them the fact that he had been driving the car.[Emphasis added].

On television Kennedy later said he was not driving under the influence of alcohol. He explained he was in a state of shock when he emerged from the creek and confused by "a jumble of emotions," and that his conduct in not reporting the accident was "inexcusable." He said he gave up hope and remembers little of how he got back to his hotel in Edgartown, except that he swam the narrow channel because there were no night ferries, and nearly drowned in the process.[Emphasis added].

Kennedy was charged and tried for failing to report an accident involving injury. He received a suspended sentence. Questions remain about his attempts to save Kopechne and the possibility of interference in the investigation and the trial by his family and friends. Kopechne's death severely damaged Kennedy's reputation and is regarded as the major reason he was never able to mount a successful campaign for President of the United States.[Emphasis added].

A funeral Mass for Kopechne was held on July 22, 1969 at St. Vincent's Roman Catholic Church in Plymouth, Pennsylvania. She is buried in the parish cemetery on the side of Larksville Mountain. [Emphasis added].
If Senator Kennedy wishes to be the moral authority for the U. S. Senate, and demand subpoenas to check out Judge Alito’s memory, or lack thereof, relating to his early post-college affiliations, maybe Senator Specter should suggest a subpoena of the records and testimony from individuals with knowledge regarding what the almost middle-aged Senator Kennedy did and with whom he spoke on that dark, deadly evening of July 18, 1969.

On that tragic evening, Mary Jo Kopechne suffocated to death after Teddy Kennedy took a wrong turn. Although most responsible people of integrity would have been expected to call the police and authorities so they might have helped to save Mary Jo Kopechne, Ted Kennedy’s passenger that dark night did not get the benefit of such an effort.

As reported above, “questions remain about Senator Kennedy’s attempts to save Kopechne and the possibility of interference in the investigation and the trial by his family and friends.” Maybe the subpoenaed documents and testimony would help re-fresh senator Kennedy’s memory so we might learn, once and for all, what really happened at Chappaquiddick.

After that, Senator Kennedy might be fit to question Judge Alito. Maybe.
"Public Affairs" Jeff Berkowitz, Show Host and Executive Legal Recruiter doing legal search can be reached at