Scalito: Day 2

While I don’t want to turn this into ScalitoBlog, it may well be in the coming days. The latest round-up of Alito’s spotty record comes from the Washington Post opinion pages, where University of Chicago law and political science professor Cass Sunstein details the nominee’s problems with civil rights, workers rights, immigration, and criminal defendants. Alito is often the most conservative of his colleagues. He is rarely the most liberal. In examining his dissents, we find that:

Many of Alito’s dissents involve civil rights. Consider some examples:

A woman and her 10-year-old child sued police officers for engaging in a body search in violation of their constitutional rights. The court allowed the case to go forward. Alito dissented, arguing that the police had qualified immunity.

Prisoners in long-term segregation units were banned from receiving newspapers or magazines from either the prison library or the publisher. The majority struck down the ban as a violation of the First Amendment. Alito dissented, finding the ban to be within the prison’s legal authority.

A trial court had refused to allow an employee who complained of racial discrimination to cross-examine a witness who had given the employee an unfavorable performance evaluation. The court ordered that the cross-examination must be permitted. Alito argued in favor of the trial court’s rulings.

An employee complained that racial discrimination accounted for the fact that she had not been promoted. The court ruled that she had raised serious issues of fact, justifying a jury judgment. Alito dissented, complaining of “an unwarranted extension of the antidiscrimination laws.”

A local zoning board imposed land-use restrictions on a Hindu temple. The court ruled that the restrictions were arbitrary and unlawful. Alito concluded that they were legitimate.

Two parents brought a wrongful death action against a college, arguing that the risk to their son from an athletic event was foreseeable. Alito concluded that the facts on which the parents relied were “insufficient.”

Several of Alito’s dissents involve important federal statutes. In a case involving workers’ rights, the court ruled that a coal processing site was a “mine” under federal law and therefore subject to the protection of the agency that regulated conditions at coal mines; Alito disagreed. In another case involving workers, a majority of the court ruled that certain reporters working for small community newspapers were entitled to the protections of the Fair Labor Standards Act. Alito dissented.

When the court ruled in favor of a Chinese citizen’s claim for asylum on the grounds that he would be prosecuted under China’s state security law, Alito accepted the government’s view that the claim was not a valid basis for asylum. In another immigration case, the court reversed a government agency that failed to consider favorable factors when denying a request for relief from deportation. Alito dissented.

A number of Alito’s dissents involve criminal defendants. When a majority of the court found a violation of the right to a speedy trial, he dissented. So, too, when the majority ruled that a district court had the authority to reduce a convict’s sentence under the sentencing guidelines. So, too, when the majority ruled that habeas corpus relief was constitutionally required when the state had not met its burden of proving the defendant’s specific intent beyond a reasonable doubt.

In a particularly important case, the court ruled that Congress has power, under the commerce clause, to ban the possession of machine guns. Alito dissented, emphasizing our “system of constitutional federalism.”

Thanks to Dad for the WaPo link.

And from Slate, there’s a whole ton of stuff. Thomas above links to Dahlia Lithwick’s article, so check it out up there. William Saletan takes on the political advantage of nominating Catholics to the bench — when they do crazy things and Dems criticize them, the right can cry bigotry.

This is the GOP’s new victim shtick: Nominate pro-lifers to the courts; brag that they’re simply upholding abortion laws favored by a majority of voters; and when liberals complain, accuse them of attacking a religious minority.

A decade ago, when Bill Clinton was president, Ralph Reed and the Christian Coalition pioneered this shtick. “Anti-Christian bigotry,” they cried at every run-in of church and state. I can’t proselytize my employees? Anti-Christian bigotry. I can’t pray over the school public-address system? Anti-Christian bigotry. But the shtick rang hollow, because 80 percent of the country was Christian. Bigotry against a powerful majority made little sense. As conservatives captured power—Congress in 1994, the White House in 2000—the victim pose grew less and less plausible.

Not to worry. Two years ago, Republicans found a new way to play victim. They were trying to get Bill Pryor, the attorney general of Alabama, confirmed to the 11th Circuit Court of Appeals. Pryor had called Roe v. Wade an “abomination” that had led to “slaughter.” Such rhetoric, according to Democrats, suggested that Pryor was incapable of subordinating his moral convictions to constitutional law. A well-connected conservative lobby, the Committee for Justice, fired back with ads depicting a warning on a courthouse door: “Catholics need not apply.” The ads accused senators of attacking Pryor’s ” ‘deeply held’ Catholic beliefs.”

In truth, no opposing senator had mentioned Pryor’s Catholicism. The inference was drawn purely from questions about his sharp moral rhetoric. Republican senators took the campaign further, suggesting that criticism of judges who supported abortion restrictions was inherently anti-Catholic. Unlike the old charge of anti-Christian bigotry, anti-Catholic bigotry sounded plausible. For one thing, less than one-fourth of the U.S. adult population was Catholic. For another, Catholics have historically been excluded from high office in this country. Of the first 54 U.S. Supreme Court justices, only one was Catholic. Not until the 1890s did others arrive, and not until 1960 did we elect the first Catholic president. Twenty years ago, only one justice was Catholic. The rest were Protestants.

More on Alito and abortion.

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