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.

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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