It's rich that the right has been so blustery in claiming that criticism of Alito is somehow based in ethnic bias, especially now that Alito's record on civil rights has come to the fore. On the front page of tomorrow's Washington Post
is an examination of some of Alito's more questionable civil rights opinions and rulings.
Eight years ago, a trio of federal appellate judges heard the case of Beryl Bray, a housekeeping manager at a Marriott hotel in Park Ridge, N.J., who alleged that she was denied a promotion because she was black. Two of the judges concluded that Bray had shown a lower court enough evidence of discrimination that she deserved a jury trial.
But the third judge, Samuel A. Alito, disagreed, writing that the hotel had merely committed "minor inconsistencies" in its rules for filling jobs and that it would be wrong to allow "disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly."
Alito's dissent prompted a rebuke from his normally congenial colleagues. The federal law that bans employment discrimination, the other two judges wrote, "would be eviscerated" if courts followed Alito's logic.
But Alito's questionable rulings are not just limited to employment discrimination cases, in which proving intent can be difficult, even in the face of other evidence. On a matter far more important to the larger judicial system -- jury selection in criminal cases -- Alito seemed to shrug off the idea that the prosecution may have been improperly disqualifying some jurors.
...Alito was rebuked by the court majority in a case in which a black criminal defendant had alleged that the prosecutor in his case had improperly disqualified potential jurors who were black. The majority ruled that, based on statistics the man had presented, an "amateur with a pocket calculator" could deduce that the prosecutor was striking jurors based on their race.
Alito disagreed, saying that others reasons besides race could have been at issue. Just because five of the last six presidents were left-handed, is it reasonable to conclude that Americans chose their presidents based on that trait, he asked. In turn, the majority replied that the analogy minimized "the history of discrimination against black jurors."
Aside from all of this, there have been cases where Alito's opinions have been far more reasonable. In one case that challenged an arrest and conviction on a gun charge as the product of an unconstitutional search-and-seizure, Alito wrote that the police "could not justifiably arrest any African-American man who happened to drive by in any type of black sports car." I'm sure that's something we'd all agree with.
I don't view Alito's record on civil rights as problematic as I did Roberts'. But then, my problem with Roberts was not so much that he was extreme. From everything I read, Roberts displayed a troubling tendency of relying too much on his own preconceived notions about issues rather than research.
In Alito's case, I do think he is too far out of the mainstream on a broad range of issues to be approved. Questions about his civil rights record only add to that. Though he may a smart guy, Alito was not nominated because he was the best person for the job. He was nominated because, as a darling of the right, his nomination would give cover to the President on the right at a time of scandal and upheaval. And it's simply not right to play political games with the Supreme Court.