Differing expectations have been created about Judge Samuel Alito as he heads to his Senate confirmation hearings. Left-wing groups, hoping to demonize him, say that he bristles with hostility to civil rights. White House aides, trying to lower the bar for success after Justice Roberts’s boffo performance last year, whisper that he’s unpolished and nerdy. Put the two accounts together and you’ll know how to recognize Alito at the hearings–he’ll be the geek in the white hood.
A little dorkiness won’t hurt. It’s the charge of opposing civil rights that could damage Alito–that is if it weren’t a slander made in a desperate attempt to stop a nominee who will very likely be sitting on the Supreme Court by February.
It is loosely said that Alito opposes “one man, one vote.” That makes it sound like he opposes the right to vote. Instead, the provenance of the charge is Alito’s long-ago opposition to two reapportionment decisions by the Warren court. They struck down state legislative districts that weren’t drawn equally according to population, thus disproportionately empowering rural areas. Critics of these decisions argued that if the Constitution’s framers meant to mandate that elected officials represent equal numbers of people, they never would have created the U.S. Senate.
Ed Whelan, president of the Ethics and Public Policy Center, points out the irony of Delaware’s Democratic Sen. Joe Biden slamming Alito on “one man, one vote.” Biden represents a state that is 2.3 percent the size of California, but still gets as many U.S. senators as the Golden State, showing Biden is more committed to preaching “one man, one vote” than practicing it. Alito will likely say in the hearings that the reapportionment cases were decided 40 years ago, and they are now firmly entrenched in the Supreme Court’s jurisprudence.
The Congressional Black Caucus maintains that Alito “is nothing short of hostile to race-discrimination cases.” Such hostility surely would stand out in his 15-year record on the 3rd Circuit, unless that appeals court is overwhelmingly occupied by Neanderthals who share his alleged soft spot for employment discrimination. Peter Kirsanow, an expert on employment law and a Bush appointee on the U.S. Commission on Civil Rights, found that Alito heard 20 civil-rights cases while sitting on a three-judge panel with two Democrat-appointed colleagues, and all the decisions were unanimous.
Alito’s critics rely on a simplistic analysis that says, essentially, if he ever rules against a minority, he must not like minorities. But this trick can be turned around to show his solicitude for ethnic and religious minorities, given his decisions in favor of Muslim police officers in New Jersey who wanted to be able to wear beards, an Orthodox Jewish woman punished on the job because of her religious observance, and a black motorist stopped by police because black men were suspects in an armed robbery, among other similar cases.
Ultimately, what matters is not whether Alito is voting with or against his Democratic-appointed colleagues, or for or against minority plaintiffs, but whether he is correct in his interpretation of the law. The anti-Alito People for the American Way makes much of his decision in Bray v. Marriott Hotels in which he was the dissenter in a race discrimination case. But, as Kirsanow argues, Alito was more faithful than his colleagues in that case to the burden-of-proof standard established by the Supreme Court. Similarly, the Washington Post editorialized, “In another case, he was the lone judge to argue for keeping a gender discrimination case from a jury; in that case, though, the Supreme Court later adopted a view of the question arguably closer to his than to the majority’s.”
Alito’s record shows no bias except one: He is pro-law, painstakingly faithful to its letter. Maybe that’s part of what makes him nerdy. But it certainly will make him a superb Supreme Court justice. The American Bar Association has unanimously declared him “well-qualified” for the job. That is an understatement.