Bench Memos

Kennedy Plays Race Card

Not only is he playing the race card, but he is misrepresenting Judge Alito’s record in doing so, claiming that Judge Alito has never once in 15 years ruled for a “person of color.” Oh? What about:

* In Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313 (3d Cir. 2000), a race and sex discrimination case, Judge Alito reversed the district court’s decision to grant summary judgment to the defendant employer. The Third Circuit ruled that the plaintiff, a black woman, had introduced enough evidence to call into doubt the employer’s explanation for why she was given lower-quality assignments.

* In Smith v. Davis, 248 F.3d 249 (3d Cir. 2001), an African-American probation officer brought a claim of race and disability discrimination in violation of Title VII and the Americans with Disabilities Act. Judge Alito joined a unanimous decision to reverse the lower court’s grant of summary judgment for the defendant employer.

* In United States v. Kithcart, 134 F.3d 529 (3d Cir. 1998), Judge Alito overturned the defendant’s conviction for being a felon in possession of a firearm, concluding that police had no probable cause to stop and search him. Judge Alito wrote: “[A]rmed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier, Officer Nelson could not justifiably arrest any African-American man who happened to drive by in any type of black sports car.”

* In Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993), an African-American defendant was convicted in Pennsylvania court of robbery and criminal conspiracy; at trial, the prosecutor used peremptory challenges to exclude three African-Americans from the jury. Judge Alito joined a unanimous opinion holding that the prosecutor had discriminated against the potential jurors on the basis of race, and granting the defendant habeas relief.

* In Brinson v. Vaughn, 398 F.3d 225 (3d Cir. 2005), an African-American defendant was convicted of first-degree murder in Pennsylvania court and sentenced to life in prison. The prosecutor had used 13 out of

14 peremptory challenges against African-American potential jurors, and Judge Alito held that this pattern raised an inference of discrimination.

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