Hewitt Skewers Henderson

Hugh Hewitt interviewed Stephen Henderson, author of the much discussed Knight-Ridder article. The transcript is here and it’s not pretty. For instance, Hewitt notes that when on C-Span, Henderson said:

For example, we didn’t find a single case in which Judge Alito sided with African-Americans, for example, alleging racial bias, which I think is, again, rather remarkable. . . . We found very few cases, maybe, I think, one or two, in which he sided with a woman in a gender bias case.

Yet Hewitt notes that in less than thirty minutes on Westlaw he found three cases in which Alito held in favor for African American females alleging employment discrimination. When confronted about this, Henderson dissembles, and seeks to defend his claim in the story that Alito is “particularly rigid in employment discrimination cases.”

The best Henderson can muster in his defense is to say that Alito did not author any of the opinions in question, and that the story focused on written opinions (even if Henderson’s statements on C-Span were broader). Rather he joined the panel majority. But this is irrelevant. Judges don’t always get to choose whether or not to write the majority opinion. On most appellate courts, majority writing assignments are handed out by the presiding judge on any given three judge panel. Whether a given judge authors the majority is often also a function of the participating judges’ preferences and specialties. So, the fact that Alito did not write these majorities says absolutely nothing – zero, zilch, nada – about his approach to employment discrimination claims or his approach to the law more broadly. After all, the average appellate judge only authors opinions in a minority of the cases in which he or she participates – less than 1/3 if one includes cases in which there is no published opinion.

Henderson says: “There is not a judge in the country who would ask you to evaluate their record based on something that they didn’t write.” Not only is this false (as Hewitt notes), academics would laugh at this claim. Yes, written opinions can tell you quite a bit about a judge’s approach to the law – what sorts of sources they find relevant, what types of arguments they find persuasive, what jurisprudential concerns motivate their opinions – but looking at written opinions alone cannot tell you whether a judge is supportive or hostile to particular sorts of claims, or whether a given judge is “particularly rigid” in a given area of the law. Legal academics that review the judicial records of sitting judges confront this issue all the time. Indeed, earlier this semester I was at a workshop in which an academic presented a paper that only looked at a justice’s written opinion in given areas yet sought to draw broader conclusions about the pattern of outcomes in those cases. The academic in question was criticized – and rightly so – for drawing such conclusions without looking at the justice’s votes in other cases in the same subject areas. Yet this is what Knight-Ridder clearly did. The truly “remarkable” thing is that Knight-Ridder’s allegedly comprehensive review of Alito’s record was not particularly comprehensive.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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