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JUDGE ALITO’S RECORD: THE DEBATE CONTINUES To the editor: Stuart Taylor Jr. is factually incorrect in his critique of a Knight Ridder analysis by Stephen Henderson and Howard Mintz of Judge Samuel Alito Jr.’s record ["Alito Distorted," Dec. 12, 2005, Page 44]. The Henderson-Mintz analysis, as the story clearly stated, dealt strictly with the 311 published opinions Judge Alito has written in his nearly 16 years on the U.S. Court of Appeals for the 3rd Circuit. We chose to look at those opinions in detail because what a judge writes from the bench — whether for the majority, the minority, or in concurrence — represents the best available evidence of his judicial reasoning and philosophy. The reporters did not focus on his votes when he didn’t write an opinion, because it would be impossible to know the reasoning behind those votes. Within the clearly defined universe of Judge Alito’s published opinions, Henderson and Mintz found an unmistakable pattern in which he seldom has sided with a criminal defendant, a plaintiff alleging employment discrimination, consumers suing business, or foreign nationals facing deportation. Are there exceptions? Of course, and the story cited some of them. But the pattern that emerged from a careful analysis that Taylor dismisses as “illiterate” was unmistakable. Taylor takes issue with Henderson’s statement on C-SPAN that “we didn’t find a single case in which Judge Alito sided with African-Americans . . . alleging racial bias.” Taylor then says there are seven cases, without naming a single one, that refute the statement. Had Taylor actually seen the C-SPAN interview, he would have known that the response came after the interviewer flashed on the screen a paragraph from the Knight Ridder story. That paragraph said: “Alito has been particularly rigid in employment discrimination cases. Many conservative jurists set a high bar for plaintiffs who allege racial, gender or age bias in the workplace, but Alito has seldom found merit in a bias claim.” Henderson was asked a question about that paragraph, and he replied that he and Mintz had not found a single case in which Alito sided with African-Americans. Should he have said a single employment discrimination case? Sure, but in context, Steve believed that his questioner and viewers understood exactly what he meant. His words have since been wrenched out of context by partisans, to attempt to discredit the entire story — just as Taylor so dismissively tries to do. It won’t wash. There are not seven published opinions by Alito siding with African-American plaintiffs in employment discrimination cases. There are none. The “factual distortions, tendentious wording, and uncritical parroting,” to use Taylor’s words, are all his, not Henderson’s or Mintz’s. Clark Hoyt Washington Editor Knight Ridder Washington, D.C. Stuart Taylor Jr. responds: I respectfully disagree with Mr. Hoyt on all points. To take them in order: In its analysis of Judge Alito’s record, Knight Ridder chose to ignore at least 689 published decisions in which Alito has joined majority opinions written by others; 459 “unpublished” opinions written by Alito, which are available on the usual legal databases and are sometimes revealing but have been classified by the courts as too routine or cryptic to warrant citation as legal precedents; and Alito’s 3,408 votes in other “unpublished” decisions. These numbers come from the Justice Department. I don’t agree with Mr. Hoyt’s rationale for ignoring the vast majority of Alito’s votes — that “it would be impossible to know the reasoning” behind them. The reasoning is spelled out in the opinions that Alito joined (excepting those unpublished decisions that say no more than “affirmed” or “reversed”) and the unpublished decisions that he wrote. I characterized this statistical analysis as “illiterate” not only for these reasons but also because it relied on sample sizes that were too small to be statistically significant and because it — amazingly — included virtually no comparative data. Knight Ridder chose instead to assume without evidence that Alito’s voting patterns rank him “among the nation’s most conservative judges.” It is well known that almost all federal appeals court judges rule against defendants in most criminal appeals, against plaintiffs in most employment discrimination lawsuits, and against foreign nationals facing deportation in most immigration appeals. So the fact that Alito has done the same proves nothing. As to the C-SPAN interview, the host’s question did focus on employment discrimination cases, but Mr. Henderson’s answer — “we didn’t find a single case in which Judge Alito sided with African-Americans . . . alleging racial bias” — was sweeping and unqualified. I have now found 10 cases in which Alito sided in whole or in part with African-Americans alleging racial bias. Five are employment discrimination cases: Goosby v. Johnson & Johnson Medical Inc. (2000), Smith v. Davis (2001), Pope v. AT&T (2001), Reynolds v. USX Corp. (2003), and Collins v. Sload (2004). Four are criminal cases: Jones v. Ryan (1993), United States v. Kithcart (1998), Williams v. Price (2003), and Brinson v. Vaughn (2005). In the 10th, Board of Managers v. West Chester Area School District, Alito sided with a discrimination claim by a school for (mostly black and Latino) delinquents. Neither the C-SPAN question nor the answer even hinted that Mr. Henderson was ignoring at least 689 published cases (including six cited above) in which Alito voted without writing opinions and all 3,867 of Alito’s “unpublished” votes and opinions (including the other four cited above).
LET’S PRAISE ROME FOR HELPING DOGS To the editor: We applaud the city of Rome for its progressive steps to make life a little better for our animal companions by acknowledging their emotional, intellectual, and social needs and abilities [ "In Rome, It's a Dog's Life," Dec. 5, 2005, Page 54]. Rome’s laws come on the heels of other lifesaving statutes passed by Reggio Emilia, which forbid companion-animal guardians from denying dogs spacious, shaded houses; protect canaries from isolation; and prohibit boiling lobsters alive, described as “torture” by researcher Gordon Gunter in the journal Science. Animals do so much for us and ask so little in return — the least we can do is provide them with what they need to be happy and healthy. For hundreds of ways to do this, visit helpinganimals.com. Lindsay Pollard-Post Staff Writer People for the Ethical Treatment of Animals Norfolk, Va.
ANIMALS ARE NOT JUST OUR PROPERTY To the editor: I must disagree with William Bedsworth’s position [ "In Rome, It's a Dog's Life," Dec. 5, 2005, Page 54]. I think the Roman city council is taking an excellent step in the right direction relative to their new requirements for goldfish and dogs. I hope this will encourage other cities to adopt similar policies and follow the lead of the Romans. Yes, enforcement would be difficult. But the significance of these requirements is that they send the message that animals are not simply property. Rather, they are living creatures with basic needs, and it is high time people realized that. Beth Heffernan Animal Law Society John Marshall Law School Chicago

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