Alito's Appeals Court Record on Race, Gender

According to some legal analysts, fewer race and gender discrimination cases would be heard by federal courts if Judge Samuel Alito is confirmed to replace Justice Sandra Day O'Connor on the U.S. Supreme Court. Ari Shapiro reports on the legal debate about Alito's 15-year career at the Third Circuit Court of Appeals.

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ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

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First, this. Confirmation hearings for Supreme Court nominee Samuel Alito come next month. Opinions Judge Alito wrote on the 3rd Circuit Court of Appeals are going to get a lot of attention. NPR has been examining some of those opinions over the last few weeks. Reporter Ari Shapiro has this look at some of these cases that involve questions of race and gender discrimination.

ARI SHAPIRO reporting:

Supporters and opponents of Samuel Alito say his record on the 3rd Circuit Court of Appeals shows a judge who wants to raise the burden of proof on employment discrimination cases, essentially making it harder for people who say they were discriminated against to get in front of a jury. Jim Copland, who directs the Center for Legal Policy at the Manhattan Institute, supports Alito.

Mr. JIM COPLAND (Director, Center for Legal Policy, Manhattan Institute): You can't have every employment discrimination case go before a jury just because the person who claims to be a victim of discrimination is a minority or is a female. You have to have some sort of standard.

SHAPIRO: But there already is a high standard, says Wade Henderson. He's executive director of the Leadership Conference on Civil Rights, and he opposes the Alito nomination.

Mr. WADE HENDERSON (Executive Director, Leadership Conference on Civil Rights): I think any plaintiffs attorney will tell you that it is hardly easy to bring a successful case of discrimination under gender and race protections today. I think what Judge Alito would do would make a difficult standard even more difficult and thus render the underlying law largely ineffective.

SHAPIRO: One of the judges on the 3rd Circuit said as much in the majority opinion for a case that came before the court in 1997. An African-American woman named Beryl Bray sued her employer, Marriott Hotels, after the company passed her over for a promotion. Alito would have upheld the lower court's decision in Marriott's favor, but the other two judges hearing the case disagreed. The majority said that Alito's position would virtually immunize employers from these kinds of suits and eviscerate anti-discrimination laws.

One year earlier, Alito was the only dissenter when all 12 judges on the 3rd Circuit heard a similar case, this time alleging gender discrimination. Sheridan v. DuPont pitted an employee against her company after the woman was denied a promotion. Again, Alito would have upheld the lower court's ruling, making it more difficult for the plaintiff to bring suit. Yale Law Professor Robert Gordon says this is classic Alito.

Professor ROBERT GORDON (Yale Law School): He thinks that the possibility for floods of lawsuits which challenge the behavior of people of authority, they interfere with these institutions' efficiencies and it puts big litigation and record-keeping burdens on them, and it's generally disruptive.

SHAPIRO: Gordon sees this as part of a larger pattern in Alito's judicial philosophy.

Prof. GORDON: Which is his belief that people in authority usually have pretty good reasons for what they do and that the legal system should cut them a lot of slack and give them a lot of discretion. He's not particularly sympathetic to the claims of the vulnerable.

SHAPIRO: That's why Debra Ness, president of the National Partnership for Women and Families, is worried.

Ms. DEBRA NESS (President, National Partnership for Women and Families): His interpretation of our civil rights and our employment rights laws is so narrow that it makes it hard to enforce the law as it was intended, and people will never have the benefit of the protections that those laws offer.

SHAPIRO: Not true, says the Manhattan Institute's Jim Copland. He believes that if Alito's standard becomes the norm, the worthiest cases will still be heard.

Mr. COPLAND: Of course there's not going to be in many cases smoking-gun memos. I think what there has to be is some evidence produced of some discrimination in the workplace beyond the mere claim that, `Oh, I'm a black, I'm a woman; that's why I didn't get the job.'

SHAPIRO: Although Alito has often been at odds with civil rights groups, there are cases where the two have agreed. For example, in 2003, Alito granted a new hearing to an African-American prisoner after a juror made a racist comment. Civil rights advocate Wade Henderson says that doesn't change his overall view of the nominee.

Mr. HENDERSON: Certainly not every decision he renders will be a decision with which we would disagree. But I think there are many examples of cases that were wrongly decided, in our view, where he was in dissent, expressing very strong views that, were they to have prevailed, would have virtually undercut essential protections that are needed in the society in which we live.

SHAPIRO: But while liberal groups see Alito's position as undermining societal protections, conservatives believe his stance would help limit frivolous discrimination lawsuits. And conservatives hope that will become the new standard on the Supreme Court. Ari Shapiro, NPR News, Washington.

CHADWICK: I'm Alex Chadwick. More in a moment from DAY TO DAY.

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