Here, in its entirety, is what People For The American Way had to say about Ramseur v. Beyer, 983 F.2d 1215 (3d Cir. 1992), cert. denied, 508 U.S. 947 (1993), another case that PFAW believes reveals Judge Alito to be unfit to serve on the Supreme Court, even though in this case Judge Alito agreed with majority opinion except for one section, writing a concurrence agreeing with the result but not the reasoning:
Mr. Ramseur challenged his criminal conviction based on alleged racial discrimination during the grand jury selection process. While Ramseur challenged several components of the jury selection procedure, the court focused on one aspect of the process involving the actions of an assignment judge. According to the record, while picking the jury, the assignment judge announced that he was trying to “‘pick a cross section of the community.'” 983 F.2d at 1222. Apparently, in attempting to achieve this goal, the assignment judge did not randomly seat potential jurors but instead asked some jurors, including at least two African-American potential jurors, to sit separately in the body of the courtroom for a period of time before they were later asked to join the panel. While the majority opinion in the case did not elaborate on the rationale for the judge’s course of action, the three-judge dissent stated that “[t]he procedure employed by the assignment judge – of temporarily excluding qualified African-American grand jurors and allowing them to serve only on condition that whites were unavailable – does violence to the principle of equal protection and can only undermine public confidence in the justice system.” Id. at 1246. Despite this pointed critique by three dissenting judges, the majority of the Third Circuit ruled against Mr. Ramseur.
Alito wrote a separate concurring opinion to make clear that he would have reached the same result as the majority albeit with somewhat different reasoning. First Alito relied heavily on the conclusion of the majority (questioned by the dissent) that no juror was actually excluded on the basis of race. Second, Alito expressed his opinion that a defendant may not have any constitutional basis to challenge a grand jury when certain racial groups were treated differently only in order to mirror the community (a “cross-section”jury). Alito conceded that, if Ramseur had succeeded in proving that any juror had been excluded based on race, his logic might have been seen to conflict with Supreme Court precedent which makes clear that any discrimination in the selection of juries is unacceptable. However, Alito was dismissive of some of the Supreme Court’s prior pronouncements in this area with respect to this case. He implied that he had no obligation to consider these pronouncements, calling them “technically dicta,” and considering them inapplicable to this case. Id. at 1243. Finally, Alito concluded that despite the Supreme Court’s ruling that defendants may be able to assert the rights of trial jurors who are victims of discrimination, the same is not true with respect to grand jury jurors.
When I first read this criticism of Judge Alito I had trouble deciding whether I was more confused, surprised, or disappointed — disappointed, to find Judge Alito seemingly endorsing the racial balancing of juries; surprised, to find People for the American Way (PFAW) regarding such racial balancing as racial discrimination; confused, at the apparent musical-chairs-like reversal of expectations. Reading Judge Alito’s opinion, however, completely erased my disappointment and confusion, and left me with only some mild surprise at the lengths, even contradictory lengths, to which PFAW will go to find fault with a Bush appointee.
First, it should be noted that this case is not about whether the attempt to balance a jury by race is a) a good idea or b) involves racial discrimination in the balancing process. Moreover, both the trial judge and the Third Circuit majority, including Judge Alito, found that no one had been excluded from the jury because of race.
Editorial Aside: Sen. Schumer, the Democrats’ leading guard dog at the gate of judicial selection, has said that his one and only issue is to ensure we have judges who are “mainstream.” Insofar as he agrees with People For The American Way (and when has he ever disagreed with them?), perhaps he can explain how an opinion joining a Court of Appeals majority places a nominee outside the vaunted “mainstream.”
The question at issue was whether Mr. Ramseur, who had been convicted of murdering his girlfriend on a public street in view of several witnesses, deserved a new trial because of what he claimed was the assignment judge’s racial discrimination against two black potential grand jurors in taking their race into account, i.e., by waiting to seat them on the grand jury as part of his effort to select a racially balanced jury.
In short, bizarre, and even bizarrer to find PFAW agreeing with him.
In a narrow sense, the question was whether Ramseur had standing to claim racial discrimination against the two potential grand jurors. Judge Alito’s patient and straightforward concurring opinion, I am now no longer surprised to discover, was masterful. He begins by observing:
I fully agree with the court that the record does not show that any person was excluded on racial grounds from the grand jury that indicted Ramseur, and it seems perfectly clear that Ramseur’s own equal protection rights could not have been violated in the absence of such an effect. I would therefore go no further and would not express any view on the hypothetical question whether Ramseur’s own equal protection rights would have been violated had such exclusion been shown.
Noting that the assignment judge had been attempting to compose a racially balanced grand jury that reflected the composition of the community– what he calls “a cross-section grand jury” — Judge Alito then observes, pataiently if somewhat drily:
it is not easy to comprehend how it can be said that a potential defendant is deprived of the equal protection of the laws when his or her case is presented to a cross–section grand jury. Such a grand jury has the same composition as the median grand jury selected by a purely random selection procedure. Since these two grand juries have the same makeup, there is no reason to believe that one will be any fairer or less fair than the other towards potential defendants of any race or ethnic group. And since a potential defendant’s equal protection rights are not violated when his or her case is presented to the median randomly selected grand jury, it is unclear why the same conclusion should not follow when the potential defendant’s case is presented to a cross–section grand
jury.
“To be sure,” Alito adds,
when the race and ethnic background of potential grand jurors are taken into account in selecting a grand jury, these potential grand jurors are treated differently, and thus it is appropriate to inquire whether their equal protection rights are violated by such a procedure. But the same cannot logically be said about the equal protection rights of potential defendants.
Continuing, still very matter-of-factly:
Ramseur wants us to vacate his first–degree murder conviction as a remedy for, among other things, the insult that he claims several black grand jurors suffered when the assignment judge asked them to sit temporarily in the body of the courtroom rather than immediately taking a seat on the panel. But before considering such a remedy, should we not have some indication that the recipients of this treatment actually feel that they were wronged and feel that vacating Ramseur’s conviction is an appropriate remedy? We would have such an indication if they had brought suit —- as they certainly could have under Carter v. Jury Commission of Greene County [cites omitted] —- and if they had asked for such relief, but we have no such indication here.
For all we know, these grand jurors may not feel that the assignment judge did anything wrong. After all, the assignment judge was simply attempting to implement in the context of grand jury selection the view that it is permissible and preferable in certain circumstances to abandon strictly “color blind” selection criteria in favor of race–conscious criteria designed to achieve diversity….
Many public officials in New Jersey contend that race–conscious criteria should be used in selecting other participants in the criminal justice system, including judges and prosecutors. Thus, the grand jurors supposedly wronged in this case may well see nothing unusual or improper in what the assignment judge did. They may think that it is a good thing for every grand jury in Essex County to reflect the racial and ethnic diversity of the community. They may feel that this will lead to fairer, more uniform decisions. They may also feel that this will lead to greater community acceptance of grand jury decisions in racially sensitive cases. And even if these grand jurors feel that the assignment judge should not have treated them as he did, they may not want Ramseur to benefit from the wrong done to them. Or they might feel that the relief Ramseur is seeking —- the overturning of his conviction —- is a misdirected or disproportionate remedy for the wrong they suffered. [Footnotes omitted]
And then, comes my favorite part of this understated but compelling opinion, Judge Alito’s conclusion:
Why should we assume that these grand jurors want Ramseur to assert and benefit from their rights? Any such assumption must be based solely on the grand jurors’ race, and I believe it is wrong in principle to make such racially based assumptions. It is also empirically inaccurate —- as I believe the facts of this case plainly show. Ramseur brutally killed a former female friend on a public street while her young grandchildren and other witnesses looked on. He was indicted by a grand jury 39% of whose members were black, and he was convicted and sentenced todeath by a petit jury 58% of whose members were black
In sum, I would hold that Ramseur’s own equal protection rights were not violated in this case and that he lacks standing to assert the rights of actual or potential grand jurors.
Wow. If complaining about opinions like this is the best Judge Alito’s critics can do, he should win approval in a walk.
John, there in the “throwing it on the wall and hoping one sticks” stage. Of course, we both agree that is sloppy, and probably counter-productive strategy, but its still very early. However, its been long enough for Alito’s entire judicial record to have been pulled, so this might be a good sign.
They are obviously theming anything with a civil rights relationship.
John, another thought. Maybe PFAW is upset that Alito seems to defend diversity and race-conscious preferences in jury selection (although he does it only in the hypothetical and third-person perspective of the alleged victims of the preference whom, he suggests, may not have seen themselves as victims, so its not clear that Alito would agree or disagree on that issue if someone else with standing had raised it).
By the way, the theoretical interests of diversity in jury-selection are far more “compelling interests” than they were in higher education or Grutter. Of course, those interests are not “empirical” or scientifically-based — they purely relate to the philosophically competing value of the right to trial by one’s “peers,” and since “peer” groups are so hard to define and different from one geographic region to another, it seems reasonable that we would focus on systems of selecting peers that ensured the broadest possible outreach and representation. I can certainly see a process whereby you at least looked at the outcome of the random selection afterwards, and said, if a jury is outside the normal distrubtion probabilities (one in 20 random selection processes will produce a rare result, such as 12 white jurors or 12 black jurors) that you reshuffle the pool. However, I’d do that “race-neutrally” in that, if the statistical result was to EITHER side of the normal distribution (with a confidence level, I’m guessing of .05). Regardless, jury selection processes are rarely decided by anything other than courts, and the legislature has very little to say about it.