January 09, 2006,
In his opening statement at the Samuel Alito confirmation hearings Monday afternoon, Massachusetts Democratic Sen. Edward Kennedy cited an academic study which he said showed that average Americans "have had a hard time getting a fair shake" in Alito's courtroom at the U.S. Court of Appeals. Alito's decisions in the cases of individual rights, Kennedy said, are part of a "record that troubles me deeply."
"In an era when too many Americans are losing their jobs, or working for less and trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of individual citizens," Kennedy said. "He has acted instead in favor of the government, large corporations, and other powerful interests. In a study by a well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom."
As evidence for his claim, Kennedy's staff handed out copies of a December 29, 2005, letter from Sunstein to Kennedy outlining the findings of the study to members of the press at the hearings. But even a cursory reading of the Sunstein letter suggests that his analysis was so tentative, so filled with caveats, and based so extensively on political assumptions as to prove virtually nothing.
In the letter, Sunstein began by saying that he had done the study not for reasons of academic curiosity but because Kennedy asked him to. "This will respond for your request for an analysis of the dissenting opinions of Justice Samuel Alito," Sunstein wrote, "and in particular of the percentage of Judge Alito's dissenting opinions that rule in favor of individual rights."
Sunstein then said the story is "long and quite complex" and that he would "be offering many disclaimers" throughout his presentation of findings. Sunstein's first disclaimer came three sentences later when he said of the 84 percent number, "A summary statistic of this kind must be taken with many grains of salt and with appropriate qualifications." Sunstein also said that his work was "crude" and done "under considerable time pressure."
The main finding of the study, Sunstein wrote, was that in looking at Alito's dissents 45 cases in all Alito had ruled against "individual rights" 84 percent of the time. But Sunstein immediately began making qualifications about the reliability of his conclusions. In a number of cases, he wrote, it was difficult to decide which side of the case favored individual rights what would that be, for example, when a labor union sought the home addresses of its members? And then, Sunstein said, there was no real evidence to conclude that "any individual vote is unreasonable." Finally, Sunstein frankly admitted that he applied a frankly political standard to his work:
A natural question is whether Judge Alito is dissenting from majority opinions that distort the law. Perhaps he is rejecting decisions ruling in favor of individual rights when such a ruling is unwarranted under existing law. One way to test that questions, admittedly imperfect, is to see whether he has dissented mostly from opinions by two Democratic nominees. (It is not terribly likely that Republican appointees will regularly distort the law in a way that favors individual rights.)
Even further, Sunstein said that he had employed "a high degree of discretion" in analyzing Alito's work. "A preliminary analysis suggests two points," Sunstein wrote. "First, Judge Alito's opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law."
Finally, Sunstein could not even say that the 84-percent figure is too high. "With many apologies for the crudeness of this method of coding, I can report that many prominent Republic nominees tend to show a complex pattern of dissenting opinions, dissenting 'from the left,' as they understand the law, as well as 'from the right,'" Sunstein wrote. The decisions of many Republican nominees, he continued, show that "they read the law in a way that does not fit with conventional political ideology."
Sunstein concluded with two more disclaimers. First, he said he was not saying whether Alito should be confirmed or not. And second, he said his findings must be regarded "as tentative and preliminary." Nevertheless, it is expected that Kennedy will cite the Sunstein study again when he has a chance to question Alito on Tuesday.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.