Discriminations

In a move that surprises no one, the Congressional Black Caucus has announced its opposition to Judge Alitio's nomination to the Supreme Court.

In an urgent letter to the "Gang of 14" requesting a meeting, CBC chairman Rep. Melvin Watt and nominations chair Eleanor Holmes Norton said that Judge Alito would "radically change the Court and bring down 50 years of race discrimination jurisprudence." According to the CBC press release,

Chairman Watt and Congresswoman Norton cited Judge Alito’s role as a consistent dissenter from his Third Circuit colleagues as evidence that he is a hard-right judge who would endanger federal statutes in many areas of American life and said he was particularly unsuited to fill the seat of Justice Sandra Day O’Connor.

Really? In "Mainstream Sam," Civil Rights Commission member Peter Kirsanow demolishes the CBC argument. First, he points out,

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," Kirsanow writes,

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.

And what does one find when one looks at all these cases, not only the hand-picked 18 used by the CBC?

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).

Some out-of-the-mainstream extremist.