Bench Memos

More on Family and Medical Leave Act Case

Just a quick follow-up to my essay yesterday on Judge Alito’s ruling on the Family and Medical Leave Act of 1993.

Judge Alito was one of 21 judges on seven panels of seven different courts of appeals who, prior to the Ninth Circuit’s decision in Hibbs, applied Supreme Court precedent to the question whether Congress validly abrogated the states’s Eleventh Amendment immunity when it enacted the FMLA. Twenty judges, including Alito, determined that Supreme Court precedent dictated that the answer to that question was no. By my quick tally, ten of these twenty judges were Clinton or Carter appointees, including the most liberal member of the Third Circuit, Judge McKee, who joined Alito’s opinion, and highly respected Democratic appointees like Amalya Kearse, Jose Cabranes, and the late Richard Arnold.

Simply put, any person or group who tries to use Alito’s ruling as ammunition against him (as Senator Schumer did yesterday) has forfeited any claim to be trusted on any representation that person or group makes about Alito’s record. We can spend forever batting down the lies and distortions of the Left, but it’s time for responsible members of the Senate and the media to recognize who speaks credibly and accurately and who doesn’t.


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