Thursday, November 03, 2005

The Left Picks Apart Alito's Record

When one resorts to picking apart the case of another, it should be a sign to any observer that the "picker" has no really serious opposition to offer. And the same is true for the nomination of Judge Samuel Alito to the Supreme Court.

The Democrats are attacking Alito with their most predictable and tiresome weapon: his sensitivity to the impossible demands and hurt feelings of the ever unsatisfied social grievance crowd--liberal minority and disability groups, feminists, and the like. This MSNBC article is part of a very predictable and tiresome line of attack against just about any originalist judge with a long record on the Federal bench. And just to be clear, the article's characterization of the 3rd Circuit as "moderate" is like characterizing the NYT's editorial page in the same way. The 3rd Circuit is fairly activist.

In order to satisfy the left, Alito would have to consistently rule in favor of minorities, women, disabled, and anyone else who claim that unwelcome treatment equals discrimination. In other words, they expect him to uncritically evaluate discrimination cases and to presume that an accusation of discrimination against a member of a suspect class (race, religion and nationality/alienage) is direct proof of it. They want an advocate on the Supreme Court who will just presume that these cases are valid because the left favors these kinds of complaints.

But take a look at Bray v. Marriott, one of the cases cited. Alito, citing the legal standard which Bray, the employee who was not selected for the promotion at issue, had to meet, agreed with the trial court. The standard, quite simply, was that she had to prove that once her employer provided a reasonable explanation for the conduct which Bray claimed was discriminatory (not hiring her when there was someone else in consideration who had roughly similar objective qualifications as she did, and then some apparently sloppy attention to procedural requirements which Marriott had established for hiring) she had to prove that each explanation offered was not credible, or even if the story made some sense, that there was other evidence that the story was simply a pretext for racist behavior.

And Alito agreed with the trial court that she had not. He felt her employer had treated the hiring in a way inconsistent with their procedures and that they really seemed to have no idea what they were doing. He characterized it as unfair, but he made a very important distinction. But unfair or improper treatment of minorities does not trigger anti-discrimination laws. Only treatment that is unfair or improper because the person is a minority. It's a huge distinction which many miss. And to Alito it seemed that that showing had not been made. In fact, the majority did not address that little detail, but rather latched on to what Alito called "loose language" that a witness for Marriott gave which indicated, more than anything else, that he was as disorganized as his hiring process. But as Alito noted, the Plaintiff had to meet the burden of proving that the reasons offered by Marriott for not hiring her were not only weak, but that they were lies, or cover for an established pattern of racist behavior.

Alito's reasoning was that allowing insult to translate into discrimination would open the floodgates for suits by disgruntled employees to make claims of discrimination, forcing employers to defend themselves for alienating an employee who did not happen to be white.

The bottom line to this criticism is that judges are not qualified for the bench unless they find a way to make a discrimination suit fly, strike an abortion restriction, penalize a business owner for not exceeding ADA guidelines, and for not finding a right to gay marriage despite no statutes that allow for it. They cannot think on their own and evaluate a case on the law. They must rewrite the law to permit a desired political outcome.

But this should surprise nobody. And if this collection of chronic old gripes is all the left can wheel out against Alito, he'll be just fine.

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