Now on First - Samuel Alito -- Let the Feeding Frenzy Begin

Posted 1:11 PM by Michael Fox

With President Bush's nomination of baseball fan and 3rd Circuit Judge Samuel Alito this morning, the floodgates of inflammatory rhetoric have been opened. By the time we have wound our way to his likely, but by no means certain, confirmation, perhaps even after the first of the year, I fear the amount of such rhetoric we will have endured will make Hurricane Katrina's floods look like a puddle.

Unlike Judge Roberts who had a relatively small number of opinions, so few in number that we were actually able to categorize them in a short period of time, see A More Complete List of of Judge John Roberts' Labor and Employment Related Decisions, don't expect the same with Judge Alito's body of work. Not only is his period of service as a judge much longer ( fifteen years to two), but Judge Alito is nothing if not prolific, often writing concurring or dissenting opinions, in addition to those opinions where he has written for the Court. One criticism that will not stick is that he does not have a fully developed judicial philosophy, available for the perusing.

While I will take a look later at his employment law decisions, here's a sampler of initial reactions about his views in this area from those opposing his nominations.

From Howard Dean, chair of the Democratic party:

Alito's record suggests an activist judicial philosophy bent on rolling back the rights and freedoms that all Americans value. Alito has sought to limit the rights of women and people with disabilities in discrimination cases, demonstrated an open hostility to women's privacy rights even in basic reproductive health matters, has a record of hostility toward immigrants, and tried to immunize employers from employment discrimination cases. It is particularly troubling that President Bush would nominate a judge who would reverse American progress and make the Supreme Court look less like America on the same day that most Americans are honoring the life and legacy of Rosa Parks.

The final salvo is certainly a nice non-inflammatory way to start the debate.

The Alliance for Justice: Alito has voted to:

-- Invalidate part of the Family and Medical Leave Act; [Presumably a reference to Chittister v. Dep't of Community and Economic Development, a 2000 decision holding that Congress invalidly abrogated the 11th Amendment rights of states when it passed the FMLA. Although this view was not ultimately supported by the Supreme Court, see Nevada Dep't of Human Resources v. Hibbs, Chittister is more of an indication of Judge Alito's view on the vitality of the 11th Amendment as opposed to how he views the substantive provisions of the FMLA.]

-- Scuttle Congress' intentions by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, his colleagues noted that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where (Judge Alito) suggests.

Before jumping on the "evisceration" statement made in Bray v. Mariott Hotels, 110 F.3d 986 (3rd Cir. 1996), you should read the whole opinion.

Judge Alito's summary of his dissent:

In sum, the evidence here shows (1) that the two applicants were of roughly equal qualifications with respect to the job for which they were seeking promotion and (2) that the employer may have acted unfairly in failing to follow proper internal procedures in rejecting one of the candidates. Under existing anti-discrimination law, evidence of unfairness in the selection process alone, without evidence linking the unfairness to race-based animus, should not be enough to get a plaintiff beyond summary judgment, so long as the employer's proffered legitimate reason for the employment decision remains intact. I respectfully suggest that what the majority here has done is to weaken the burden on the plaintiff at the pretext stage of the McDonnell Douglas framework to one where all the plaintiff needs to do is to point to minor inconsistencies or discrepancies in terms of the employer's failure to follow its own internal procedures in order to get to trial. I have no doubt that in the future we are going to get many more cases where an employer is choosing between competing candidates of roughly equal qualifications and the candidate who is not hired or promoted claims discrimination. I also have little doubt that most plaintiffs will be able to use the discovery process to find minor inconsistencies in terms of the employer's having failed to follow its internal procedures to the letter. What we end up doing then is converting anti-discrimination law into a "conditions of employment" law, because we are allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly. This represents an unwarranted extension of the anti-discrimination laws.

You may disagree with his viewpoint, but it hardly seems radical, at least as I would use that term.

We seem to find ourselves in a funny place, where both logically (not to mention constitutionally)it does not seem that the Senate should condemn a Supreme Court nominee merely because he is "conservative" or "liberal" based on the predilections of the appointing President, who after all obtained the right to make that appointment by winning the most recent national election. So instead, we demonize the individual and his decisions. Maybe a closer review of Judge Alito's opinion will determine he really is out of what I would consider the judicial mainstream -- that is someone whose opinions are well reasoned and based on an intellectually honest reading of precedent and the facts. I would be more than happy if that indeed were the test, honestly applied.

One other tidbit for the employment law community. Judge Alito's sister, Rosemary Alito, is a management side employment lawyer in New Jersey.

On with the show.

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