Bench Memos

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The Washington Post yesterday has a front-page story on the Left’s plans to attack Alito’s confirmation because of his position in some civil-rights cases. But the article acknowledges that in other cases Alito has voted, for instance, to “uph[o]ld the rights of religious minorities” and ruled against racial profiling. And, predictably, one of the cases that the Left will attack involves Alito’s vote against the layoff of a white female in the name of “diversity.”

Most of the cases that offend the Left, however, appear to be rather technical. No judge believes that it is lawful to fail to promote a black employee because of her race; the law is crystal clear on that point. But the law is also crystal clear that if the reason the employer decided to promote someone else had nothing to do with race, then the employer should not be held liable. The challenge is to come up with a legal framework that will sift the meritorious cases from the nonmeritorious ones. Judges ought to be able to go about this difficult task in good faith without being accused of being “on the wrong side of civil rights” (Sen. Kennedy’s spokeswoman, quoted in the article) or of “oppos[ing] many of the goals of people who are trying to protect and expand rights and liberties” (in the words of another member of the civil rights establishment, also quoted in the Post article).


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