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Critics See Ammunition In Alito's Rights Record

From time to time, Alito's opinions have prompted criticism from his fellow judges that he has disregarded long-established rules, including in one 1996 case in which he was the only one of 12 judges who voted against granting a trial to a former hotel employee who alleged she had been discriminated against.

Five years later, Alito was rebuked by the court majority in a case in which a black criminal defendant had alleged that the prosecutor in his case had improperly disqualified potential jurors who were black. The majority ruled that, based on statistics the man had presented, an "amateur with a pocket calculator" could deduce that the prosecutor was striking jurors based on their race.

Alito disagreed, saying that others reasons besides race could have been at issue. Just because five of the last six presidents were left-handed, is it reasonable to conclude that Americans chose their presidents based on that trait, he asked. In turn, the majority replied that the analogy minimized "the history of discrimination against black jurors." In a later case, a different defendant met Alito's test: He concluded that when a prosecutor used 13 of 14 challenges to strike black jurors, it was reasonable to infer a racial motivation.

At other times, Alito was part of a court majority that took a limited view of the law. The most important case during his tenure that the 3rd Circuit has considered on affirmative action -- a question on which the Supreme Court is closely divided -- was a 1997 lawsuit involving the Piscataway, N.J., school district.

Facing layoffs, school administrators had decided to dismiss a white teacher rather than a black teacher to promote diversity. The appellate court ruled 8 to 4, with Alito in the majority, that the district's policy of giving preference to minority teachers in layoff decisions was unconstitutional because it had not been intended to correct any past discrimination and it violated the rights of white employees. The court's dissenters wrote that "no Supreme Court case has ever" precluded "consideration of race or sex for the purpose of insuring diversity in the classroom as one of many factors in an employment decision." The Supreme Court agreed to hear the case, but it was settled before the high court ruled.

Alito has also taken part in one significant voting rights case in which the circuit was divided. He was part of a three-judge panel that heard a case in which black voters challenged a school board's at-large system of electing members. Alito and another judge found that the voting method did not deprive minority voters of an equal chance to elect board members of their choice. The dissenter, Judge Max Rosenn, a Nixon appointee, wrote that at-large districts hamper minority representation. Rosenn said that Alito and the other judge allowed a voting system "which only by a series of flukes and anomalies has permitted any minority representation at all. This cannot be the desire of Congress, and it most certainly is not that of the Supreme Court."

Alito's dissents on civil rights matters began shortly after he joined the court in 1990. The following year, he disagreed with the majority that said a lower court judge should allow a trial for a medical student, in pain after a car accident, who had dropped out of the Medical College of Pennsylvania and filed a disability claim, alleging that the school had not done enough to enable her to sit through classes.

In Bray , the case involving the Marriott worker, Alito reasoned that courts must set a high enough standard in deciding whether people provide enough evidence for a trial, predicting 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." His fellow judges criticized his view of the law as "tightly constricted," saying the courts must consider "whether a reasonable fact-finder could conclude that Bray was not deemed the best because she is Black."

Research editor Lucy Shackelford and researchers Don Pohlman and Madonna Lebling contributed to this report.


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