Dispatches from the Creation Wars

Kennedy’s Remarks on Alito

Yesterday I highlighted the absurdities of Sen. Cornyn’s opening remarks about Judge Alito’s nomination. Today I think I’ll point the spotlight at Sen. Kennedy on the other side of the aisle. His opening statement (scroll down) was no less ridiculous. Kennedy referred to a study by Cass Sunstein, a distinguished liberal legal scholar from the University of Chicago, of Judge Alito’s opinions:

In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests.

In a study by the well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents.

To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

In an era when America is still too divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job: in 15 years on the bench, not one.


But this is hardly a serious argument. So what if he voted against individual claims 84% of the time? Unless one actually examines the case record and makes an argument as to why he was wrong to rule that way, of what possible use is such a statistic? The only thing that matters is whether his opinion was well written and supported by the facts of the case, and it’s entirely illogical to argue that merely because he ruled in favor of a corporation and against an individual, the ruling must be wrong. Sen. Kennedy made no attempt whatsoever to question the validity of any of those 84% of his rulings, he merely thought that by labelling them as “against the individual” he has defeated their logic. But that is only a reasonable position if the individual claim is valid, which he makes no attempt to establish.

Sunstein’s remarks on Alito’s record are germane here. While he does point out that Judge Alito’s decisions were reliably in line with conservative views, he also recognizes that this doesn’t mean much unless you make some argument for why they are wrong:

It is important not to misread this evidence. Alito sits on a relatively liberal court, and hence his dissents are sometimes from relatively liberal rulings. None of Alito’s opinions is reckless or irresponsible or even especially far-reaching. His disagreement is unfailingly respectful. His dissents are lawyerly rather than bombastic. He does not berate his colleagues. Alito does not place political ideology in the forefront.

Nor has he proclaimed an ambitious or controversial theory of interpretation. He avoids abstractions. He has not endorsed the view, associated with Justices Antonin Scalia and Clarence Thomas, that the Constitution should be interpreted to fit with the “original understanding” of those who ratified it. Several of his opinions insist on careful attention to the governing legal texts, but that approach is perfectly legitimate, to say the least.

It is absurd to use statistical measures of a judge’s rulings, particularly when the only thing those measures look at is whether those rulings were more or less “conservative” than the other judges on the same court. It has no bearing on the question of whether the rulings were well-reasoned, coherent, logically follow from the government precedents, or any other legitimate measure of a ruling’s validity. And it just points out that the members of both parties care only about outcomes despite their protests to the contrary and their pretense that only the other side does so.