December 15, 2005,
The assault on Judge Samuel A. Alito's civil-rights record continues apace. The mantra of Judge Alito's opponents is that he's hostile to civil rights, and in particular, to claimants in race-discrimination cases.
The members of the Congressional Black Caucus formally announced their unanimous opposition to Judge Alito's nomination last week, contending that the nomination represents "a dangerous turning point" for the Supreme Court. Speaking on behalf of the CBC, Eleanor Holmes Norton asserted that Judge Alito, a man of "extreme views," was an inappropriate choice to replace Justice Sandra Day O'Connor who, according to Norton, represents "mainstream judicial conservatism".
The urgency with which the CBC approaches Judge Alito's nomination is partially reflected in the timing of the CBC's announcement. Whereas the CBC waited to announce its opposition to John Roberts until his confirmation hearing, the organization has already signaled that it considers the Alito nomination an "extraordinary circumstance." CBC members indicated that during Judge Alito's confirmation process they will be concentrating their efforts on the "Gang of 14" senators, presumably to encourage a filibuster.
How did the CBC conclude that Judge Alito's civil-rights record was so far out of the mainstream as to warrant filibuster? As Norton describes, by looking at Judge Alito's decisions on the Third Circuit:
"So we looked at the largest volume of race cases we could find. And those were basically Title VII cases; occasionally job-discrimination cases in other areas.
And we found, unreservedly, that Judge Alito's cases on race are the most disturbing of his entire jurisprudence and that a pattern emerges from those cases, which means that he is nothing short of hostile to race discrimination cases."
Norton notes that the CBC's conclusion was reached after a "methodical, well-thought out, well-researched, well-reasoned evaluation of the man's record" involving 18 job discrimination cases.
The problem with the CBC's sample is that it's not only empirically skewed, but astonishingly small. Judge Alito's been on the Third Circuit for 15 years. During that time, he participated in 129 three-judge panels and 14 en banc panels that adjudicated cases involving civil rights, i.e., cases involving the rights of individuals in protected classes (race, sex, age, religion, national origin, disability, etc.) in the context of the Fourteenth Amendment or anti-discrimination statutes such as the 1964 Civil Rights Act, the 1965 Voting Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, etc.
If Judge Alito is a hard-right extremist and outside the judicial mainstream, then by definition one would expect that he'd rarely side with his fellow judges on the Third Circuit Court of Appeals. In fact, one would expect that he'd almost never agree with those judges appointed by Democrat presidents. Further, one would expect that Judge Alito would vote with his Republican colleagues against his Democrat ones by overwhelming margins.
But a review of Judge Alito's extensive civil-rights record on the Third Circuit (a record nearly ten times as large as the sample reviewed by the CBC) shows that if he's a far right, closed-minded ideologue, then so are all the other judges on the court, whether appointed by Democrats or Republicans.
Obviously that's not the case.
Judge Alito's co-panelists on civil-rights cases agreed with his votes and written opinions 94 percent of the time, producing unanimous results 90 percent of the time. Moreover, Democrat-appointed judges actually agreed with Judge Alito's position at a slightly higher rates (96 percent) than Republican-appointed judges (92 percent).
Consider Judge Alito's record when sitting on panels with two Democrat-appointed judges (RDD Panels); then compare such record to the panels where Judge Alito sat with one Republican-appointed judge and one Democrat-appointed judge (RRD Panels); and finally compare such record to panels with two other Republican-appointed judges (RRR Panels):
RDD PanelsJudge Alito sat with two Democrat-appointed judges in 20 cases, and all 20 were unanimous. The results favored the civil-rights plaintiff six times (30 percent) and were adverse 14 times (70 percent). Judge Alito wrote the majority opinion in five of the cases. Where Judge Alito wrote the opinion, the results favored the civil rights plaintiff 40 percent of the time and were adverse 60 percent of the time. Consequently, if the CBC maintains that Judge Alito is hostile to civil-rights claimants, then it appears that the Democrats on the panels were even more hostile.
RRD PanelsJudge Alito sat with one Republican and one Democrat-appointed judge in 60 cases, where his Democrat-appointed colleague agreed with him 56 times (93 percent) and disagreed only four times (7 percent) the same rate as his Republican-appointed colleagues. 54 of the 60 cases were unanimous (90 percent). The results in slightly over half of the cases were adverse to the interests of the civil rights claimant. Judge Alito wrote the opinion for a unanimous court in 14 cases, for a split court in three, concurred in two and dissented in two.
RRR PanelsJudge Alito sat with two other Republican-appointed colleagues in 41 cases with a 90-percent agreement rate. All but six were unanimous (85 percent). Judge Alito wrote 11 unanimous opinions, one for a split court, one concurrence and one dissent.
Interestingly, panels in which Alito participated with two other Democrat-appointed judges were more likely to render decisions adverse to civil-rights plaintiffs than panels in which Judge Alito was joined by two other Republicans. Moreover, the RDD Panels were more likely to be unanimous (100 percent) than the RRR Panels (85 percent) hardly evidence of a partisan ideologue.
Obviously, a thorough assessment of Judge Alito's judicial approach requires an analysis of the actual facts and applicable law of each case. Some disagreements may occur in cutting-edge cases. Nonetheless, Judge Alito's detractors cannot credibly claim that he's a judicial extremist or hostile to civil rights without leveling the same charges against every other judge on the court.
Judge Alito's high agreement rate with Democrat-appointed colleagues shouldn't alarm conservatives that Alito embraces liberal interpretive doctrines. A review of the rationales in his opinions (some of which will be analyzed in upcoming pieces) bears indices that suggest Judge Alito's judicial approach is very similar to that of John Roberts:
Judge Alito is firmly within the mainstream of civil rights jurisprudence. Attacks based on his civil-rights record will fail.
Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.