Critics See Ammunition In Alito's Rights Record

By Amy Goldstein and Jo Becker
Washington Post Staff Writers
Thursday, November 3, 2005

Eight years ago, a trio of federal appellate judges heard the case of Beryl Bray, a housekeeping manager at a Marriott hotel in Park Ridge, N.J., who alleged that she was denied a promotion because she was black. Two of the judges concluded that Bray had shown a lower court enough evidence of discrimination that she deserved a jury trial.

But the third judge, Samuel A. Alito Jr., disagreed, writing that the hotel had merely committed "minor inconsistencies" in its rules for filling jobs and that it would be wrong to allow "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."

Alito's dissent prompted a rebuke from his normally congenial colleagues. The law that bans employment discrimination, the other two judges wrote, "would be eviscerated" if courts followed Alito's logic.

Bray v. Marriott attracted scarcely any attention at the time. But now that Alito has been nominated to the Supreme Court, it is part of a group of cases -- spanning gender bias, sexual harassment, age discrimination and disability and voting rights -- that his critics say reflects a narrow reading of civil rights laws.

According to a preliminary review of legal databases by The Washington Post, Alito has during 15 years on the U.S. Circuit Court of Appeals for the 3rd Circuit helped to decide scores of cases that touched on civil rights -- a far larger body of such opinions than Chief Justice John G. Roberts Jr. had produced before President Bush chose him for the Supreme Court four months ago. Alito's lengthy record on rights is emerging as a significant cleavage point between his supporters on the right and detractors on the left, even before activists on both sides have completed poring over his opinions.

In civil rights cases, Alito has agreed with the court's majority most of the time, The Post's review found. When he disagrees, he is not prone to inflammatory language or frontal challenges to Supreme Court precedent. Still, when he has taken a dissenting stance, Alito repeatedly has set a higher bar than his fellow judges for plaintiffs to prove that they were discriminated against -- and sometimes even to get a trial.

Alito has written six major dissents, including Bray , on cases involving employment discrimination, siding squarely with the employee one of those times. Given the large volume of cases, the review focused largely on instances in which Alito differed with the other dozen members of the Philadelphia-based 3rd Circuit, generally regarded as a comparatively moderate appeals court, rather than his entire body of writings on rights.

Senate Democrats are vowing to make Alito's track record on rights a prominent theme of his confirmation hearings before the Senate Judiciary Committee. "It will be an issue. When it comes down to it, he's on the wrong side of civil rights," said Stephanie Cutter, a spokeswoman for Sen. Edward M. Kennedy (D-Mass.), a member of the committee.

And since Alito's nomination Monday, liberal interest groups -- including ones that promote women's causes, disability rights and racial justice -- have been plowing through his record feverishly, trading what they are unearthing. "In the course of his judicial career, he has opposed many of the goals of people who are trying to protect and expand rights and liberties," said William L. Taylor, chairman of the Citizens' Commission on Civil Rights.

The Bush administration disputes such portrayals. Rachel Brand, the Justice Department's assistant attorney general for legal policy, said Alito's rulings show that "he understands that the rule of law benefits everyone equally -- plaintiff and defendant. . . . He comes to the result the law requires. He is not outcome-oriented."

Administration officials cite, for example, two cases in which Alito upheld the rights of religious minorities. And they point to a 1998 case involving a black man driving a black Nissan who was pulled over by police and searched soon after a police dispatcher had issued a bulletin for two robbery suspects who were described merely as black males in a black sports car. The man was arrested and convicted after police found an unauthorized gun in his car; he appealed, saying the search had been unconstitutional. Alito, writing for the majority of a divided court, agreed that the police had lacked any probable cause for the search, saying they "could not justifiably arrest any African-American man who happened to drive by in any type of black sports car."

Bruce Fein, a constitutional scholar who was a colleague of Alito's at the Justice Department during the Reagan administration, said that Alito's rulings on civil rights demonstrate a more conservative frame of reference than that of retiring Justice Sandra Day O'Connor, a frequent swing vote. If Alito succeeds her, Fein said, he would shift the court to the right.

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