Bench Memos

“Fact” Sheet

People for the American Way has issued a 24-page preliminary report on Judge Alito. On page nine, PFAW complains about Alito’s ruling in Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994) claiming that “this ruling raises troubling issues about how Alito would treat language minority jurors.” PFAW’s own description of Alito’s ruling states:

The federal district court … found that the striking of [five] Spanish-speaking jurors represented an unconstitutional exclusion of jurors based on race or national origin. … On appeal, in an opinion written by Alito, the Third Circuit reversed the decision of the district court. … Alito also found persuasive the prosecution’s stated concerns about juror’ ability to consider only the court-sanctioned translations in coming to their decision in the case.

Yet, Alito was merely following the Supreme Court’s own precedent in Hernandez v. New York (89-7645), 500 U.S. 352 (1991).

Worse for PFAW’s argument, Alito’s opinion regarding bilingual jurors was later shared by the Ninth Circuit Court of Appeals, hardly a den of hard-right jurisprudence, in U.S. v. Fuentes-Montijo 68 F. 3rd 352 (Ninth Cir.1995). Quoting from that decision:

When, as here, a district court is faced with a jury that includes one or more bilingual jurors and the taped conversations are in a language other than English, restrictions on the jurors who are conversant with the foreign tongue is not only appropriate, it [sic] may in fact be essential. … The rules of evidence and the expert testimony would prove of little use if a self-styled expert in the deliberations were free to give his or her opinion on this crucial issue, unknown to the parties.

PFAW is actually upset that Judge Alito is on the same side as both Supreme Court precedent and the Ninth Circuit Court of Appeals. If this is the best Alito’s foes can do, Alito could be confirmed by Thanksgiving.

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