The Congressional Hispanic
Caucus’ policy with respect to the evaluation of nominees for
judicial vacancies requires an extensive examination of each
nominee’s record and background in order to assess the
following: his or her commitment to equal justice and right of
access to the courts, his or her support for Congress’
constitutional authority to pass civil rights legislation, and
his or her efforts in support of protecting employment,
immigrant and voting rights, as well as educational and
political access for all Americans. Although we originally
adopted this process to consider Hispanic nominees we now apply
this process to all nominees for judicial posts including
Supreme Court vacancies.
Due consideration is given to the
nominee’s honesty, integrity, character and intellect with
special emphasis on concerns specific to the Latino community
such as equal justice and advancement opportunities for
Hispanics. We require each nominee have a demonstrated
commitment to protecting the rights of ordinary residents of the
United States, through professional work, pro bono work, and
volunteer activities. We also require a commitment to
preserving and expanding the progress that has been made on
civil rights and individual liberties. These include rights
protected through core provisions of the Constitution, such as
the Equal Protection and Due Process Clauses, First and Fourth
Amendments, and the right to privacy, as well as statutory
provisions that protect Latinos’ legal rights in such
fundamental areas as education, voting, affirmative action,
employment and contracting. In all, we make every effort to
research a nominee’s background and examine his or her decisions
and writings. We then discuss the relevant findings to decide
on whether to favor or oppose a nominee’s confirmation or to
remain neutral and take no position.
Our process is also assisted by
the excellent work of many legal and advocacy organizations.
They provide a critical service by further evaluating and
commenting on the nominees’ legal opinions and background, and
the consequences for the Latino community. Their work has
afforded our members the opportunity for more in-depth
discussions about nominees and their qualifications for judicial
posts.
Congressional Hispanic Caucus
members know that the nomination of a new Supreme Court Justice
has significant ramifications not just for Hispanics but for all
Americans. Therefore, great effort is made through our
Initiative and Task Force to consider fully a nominee’s
qualifications for the Court, as well as the implications his or
her ascendancy would have on the civil and constitutional rights
of all Americans and their expectation of equal protection under
the law. Our positions on nominations are not arrived at
lightly or without thorough deliberation.
As part of my responsibilities as
Chair of the Hispanic Judiciary Initiative, I evaluated Judge
Alito’s qualifications and background, applied the Caucus’
stated criteria and considered the opinions of respected Latino
leaders and members of the legal, academic and advocacy
community. Allow me to highlight a few areas that cause the
Hispanic Caucus great concern for they provided significant
insight into how Judge Alito’s approach and philosophy would
determine his rulings from the bench:
Discrimination in Jury Selection
Pemberthy v. Beyer 19 F. 3d 857
(3d Cir. 1994)
In the 1994
case of Pemberthy v. Beyer, Judge Alito issued a decision
as a member of the Third Circuit Court of Appeals that had the
effect of barring many Latinos from serving on juries in cases
in which Spanish-language evidence is at issue. In Pemberthy,
the prosecution’s case featured testimony in Spanish that was
translated by the police and used in translation by prosecutors
in presenting their case. In selecting jurors, prosecutors
exercised peremptory challenges to strike five jurors who
understood Spanish. The prosecutors indicated they barred these
jurors because jurors who speak Spanish might not credit the
official, State-provided translations of the evidence and may
use their special knowledge to glean additional information from
the evidence.
After being
convicted in New Jersey state court, the defendants petitioned
the federal district court for review. The district court in New
Jersey overturned the convictions, holding in part that
dismissing Latino jurors because they can understand Spanish is
tantamount to dismissing them based on race and is therefore
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment.
The State of
New Jersey appealed to the Third Circuit, where Judge Alito
heard the case and wrote the majority opinion, which reinstated
the convictions. Judge Alito held that the Constitution does not
prohibit a trial attorney from dismissing jurors because of
their proficiency in Spanish when translations of evidence are
at issue.
Clearly, not
all Americans who are proficient in Spanish are Latinos, and not
every potential juror dismissed on this basis will be Latino.
But a clear majority of Spanish-speakers in America are
Hispanic, and a substantial segment of the Latino community in
this country is Spanish speaking. The rule of law applied in
Pemberthy, therefore, clearly acts to prevent
Spanish-speaking Latino litigants from enjoying equal access to
justice in America by not being heard by a jury of their peers
and allows language to serve as a pretext to discriminate on the
basis of ethnicity.
Voting
Rights Act
Jenkins
v. Manning 116 F.3d 685 (3d
Cir. 1997)
In this case
African-American voters brought an action against the Red Clay
school district in Delaware, contending that, as the courts have
found in many other cases, the district’s at-large voting system
improperly diluted the voting strength of minorities. After
reversing and remanding the District Court’s ruling that no
violation of the VRA took place, the District Court considered
additional evidence and again found no violation. The lower
court found that although all of the criteria for such a claim
established by the Supreme Court in Thornburg v. Gingles,
478 U.S. 30 (1986) were met, and even though there was evidence
of racial polarization and that the lingering effects of
discrimination could depress voter turnout, section 2 of the
Voting Rights Act had not been violated. Judge Alito appears to
have joined the majority in affirming the District Court’s
ruling. Judge Rosenn (a Nixon appointee) vigorously dissented.
He explained that the majority had improperly “placed its
imprimatur on a system which only by a series of flukes and
anomalies has permitted any minority representation at all”
contrary to Congress’ intent and had “overlooked the broad sweep
of the Voting Rights Act.” Id. at 701, 700. The “Senate
Factors” (after finding Gingles factors present) were
additional and necessary considerations and consisted of (1) the
extent to which minority group members had been elected to
public office in the jurisdiction and (2) the extent to which
voting in the elections of the political subdivision is racially
polarized. Judge Alito found that the Senate Factors were met
when historically only 3 of 10 black candidates over a 10 year
period were successful (one in a never-repeated plurality win
and one by a black candidate defeating another black
candidate). Rosenn pointed out that the court’s decision
appeared to contradict a previous Third Circuit decision in the
case, in which the court had “repeatedly” emphasized the
“rarity” of a case in which facts as in Jenkins are “not
violative” of the Voting Rights Act. Id. at 702.
Constitutional Rights of Immigrants
1986
Memo to FBI Director William Webster
In 1986, as an attorney in
the Reagan Administration, Judge Alito drafted a legal opinion
for then FBI Director William Webster which went beyond the
scope of the question submitted by the FBI Director to the
Department of Justice. In his response he provides an overly
narrow interpretation of the constitutional protections
available to undocumented immigrants in the United States.
Judge Alito wrote that case law “suggests” that undocumented
immigrants have no claim to nondiscrimination with respect to
non-fundamental Constitutional rights. The original question
submitted by the FBI related to whether it was constitutionally
proper to collect fingerprint and criminal information of
nonresident non-citizens.
What is noteworthy in this
instance is that Judge Alito’s legal opinion in his
communication to the FBI Director fails to mention Plyler v.
Doe, 457 U.S. 202 (1982), a case regarding undocumented
immigrant students who were barred from Texas schools in
violation of their equal protection rights. The Plyler
Court expressly held that education is not a fundamental right
but that undocumented immigrants have equal protection rights in
this context despite the right being “non-fundamental.”
Plyler was decided four years prior to Alito’s letter to the
FBI Director, but he ignores it entirely and chooses to cite
older cases that were not directly relevant to the legal
question presented but which suggested limited readings of the
availability of constitutional protections for undocumented
immigrants.
I am concerned that Judge
Alito’s misstatement of the law regarding the constitutional
rights of non-citizens may reflect a tendency on his part to
disfavor constitutional protections for undocumented immigrants,
many of whom are Hispanic. The nominee’s bias against expansive
interpretations of the constitutional protections properly
afforded to undocumented immigrants might be considered
predictive of a willingness to overturn Supreme Court precedent,
like Plyler, that has favored expansive views of the
constitutional protections afforded to non-citizens of the
United States. Furthermore, the effects of the application of
Judge Alito’s restrictive and aggressive legal analysis raises
concerns regarding the extent to which he might, as a Supreme
Court Justice, permit the government to mistreat both
nonresident aliens outside of the United States and undocumented
immigrants within the United States.
Limiting Commerce Clause Application
United
States v. Rybar, 103 F.3d 273
(3d Cir. 1996).
Raymond Rybar, a licensed
firearm dealer, challenged his indictment for a violation of the
federal Firearm Owners’ Protection Act. At issue was whether
Congress has the authority to regulate the possession and/or
transfer of machine guns under the Commerce Clause of the
Constitution.
Writing in dissent, Judge
Alito noted that the federal statute in question regulated “the
purely intrastate possession of firearms” and that Congress made
no findings regarding the link between the regulation of machine
guns and interstate activity. Purporting to apply United
States v. Lopez, Judge Alito found that the federal
government exceeded its regulatory authority under the Commerce
Clause such that indictments under the Firearm Owners’
Protection Act are invalid. Judge Alito suggests that Congress
could regulate the private possession of machine guns if
Congress makes findings that “the purely intrastate possession
of machine guns has a substantial effect on interstate
commerce.”
The Rybar majority
explicitly rejected Judge Alito’s interpretation of the Commerce
Clause. Citing a long line of Supreme Court precedent, the
majority held that “Supreme Court cases have long sustained the
authority of Congress to regulate singular instances of
intrastate activity when the cumulative effect of a collection
of such events might ultimately have substantial effect on
interstate commerce.” The majority also holds that the
congressional regulation of firearms is supported by substantial
historical legislative findings and that “we find no authority”
to require that Congress demonstrate a specific link between the
subject matter regulated and the regulation in question.
“[M]aking such a demand of Congress or the Executive runs
counter to the deference that the judiciary owes to its two
coordinate branches of government, a basic tenet of the
constitutional separation of powers,” the Rybar majority
noted.
If Judge Alito’s view of the
Commerce Clause as manifested in his Rybar dissent
becomes settled federal law, it will curtail federal power to
regulate civil rights under the Commerce Clause, which has been
the constitutional vehicle for much federal civil rights
legislation.
Title
VII Employment Discrimination
Bray v.
Marriott Hotels, 110 F.3d 986 (3d Cir.
1997).
An African
American female hotel employee, passed over for a promotion in
favor of a white employee sued Marriott Hotels under Title VII
of the Civil Rights Act of 1964. The plaintiff employee
established a prima facie case of unlawful employment
discrimination under Title VII, but when the hotel proffered a
nondiscriminatory explanation for her non-promotion, the
district court granted the employer’s motion for summary
judgment. The plaintiff employee appealed to the Third Circuit,
alleging that the hotel’s proffered reason was merely a pretext
that concealed the fact that the employment action was taken on
a discriminatory basis.
The Third
Circuit majority reversed the district court’s order for summary
judgment and remanded for further consideration of the
motivations of hotel management in not promoting the employee in
question. During a deposition of the hotel manager charged with
making promotion decisions for the hotel, the manager stated
that he “was looking for the best candidate” and passed over the
plaintiff for promotion because she was not the “best
candidate.” Further evidence showed that the hotel did not
follow its usual procedures for promoting employees internally.
The Third Circuit majority held that the manager’s decision not
to promote the plaintiff may have been “driven by racial bias”
and, as such, the plaintiff’s Title VII claim should have
survived summary judgment and proceeded to trial.
Faced with
uncertainty regarding the motivations of the manager in making a
promotion decision, the majority held that “a fact finder should
determine why [the employer] felt that [the employee] was not
qualified or ‘capable of doing the job’” and decide whether the
proffered reason was a pretext that concealed discriminatory
motivations. The majority noted that “[a] reasonable jury could
conclude from [management’s statements] that the decision to
reject her and interview [the white candidate] was driven by
racial bias and not by the explanations offered by Marriott.”
In his Bray
dissent, Judge Alito established an elevated standard that
plaintiffs must meet to survive summary judgment in Title VII
cases. Even when an employee shows that an employer has not
followed its own policies and has made an employment decision
based in unclear motivations, the employee’s Title VII action
should not survive summary judgment. The plaintiff, in essence,
is denied an opportunity to explore the employer’s underlying
motivation in court.
The Bray
majority strongly criticized Judge Alito’s dissenting Title VII
analysis:
“[Title VII] must not be applied in a manner that
ignores the sad reality that racial animus can all too easily
warp an individual’s perspective to the point that he or she
never considers the member of a protected class the “best”
candidate regardless of that person’s credentials. The dissent’s
position would immunize an employer from the reach of Title VII
if the employer’s belief that it had selected the “best”
candidate was the result of conscious racial bias… Title VII
would be eviscerated if our analysis were to halt where the
dissent suggests.”
Under Judge Alito’s Title VII analysis
established in Bray, minorities’ ability to pursue fair
employment under Title VII would be severely curtailed.
The CHC wishes to acknowledge the indispensable
role the United States Senate plays in determining the
composition of the Supreme Court. We know that the nominee will
be someone of President Bush’s choosing, a Republican, a so
called “conservative”, and a person acceptable to the
president’s political base. This is the political reality.
However, this does not necessarily mean that the Supreme Court
should be a mere extension of the Executive Branch. This
nation’s Founding Fathers did not intend it to be and therefore
subjected the president’s nominees to Senate approval by way of
advice and consent.
There may be a good faith disagreement as to the
appropriate parameters limiting the types of questions asked of
the nominee by this committee, but no one would argue that
questions establishing a nominee’s judicial philosophy are
universally contemplated under advice and consent.
The Hispanic Caucus believes the cases earlier
cited, Judge Alito’s 1986 memo, and other judicial opinions are
powerful indicators of his judicial philosophy. We believe it
reflects an approach that (1) can conveniently ignore precedent;
and (2) favors strained readings of the law to the detriment of
individual rights and statutory remedies. It is a judicial
philosophy that pushes the judicial envelope of strict
constructionism to the point where the letter of the law is
viewed and weighed without any consideration for the spirit of
the law.
The CHC is aware that political, social and
economic forces in any society play to the advantage of the
employer over the employee, the able-bodied over the disabled,
the citizen over the immigrant, the majority over the minority,
the wealthy over the poor and the state over the individual.
But in the United States it has been the third branch of
government, the judicial branch, which has countered the
tendency to abuse this innate “advantage” by acting as the great
equalizer regardless of one’s status.
For the CHC, the desired judicial philosophy is a
simple one and is best expressed in Bernard Malamud’s work “The
Fixer”:
