Kennedy and His Discredited "Evidence"
First, he mentioned a study done by “law professors at Judge Alito’s alma mater, Yale Law School.” What Senator Kennedy fails to mention was that this “study” was done by a group of hard left liberal Yale Law professors and students who call themselves “The Alito Project.” Ed Whelan eviscerates their drivel here and here. From what I can see, their report is little more than a rehash of the preliminary PFAW report on Alito with the Yale Law School name attached to it.
Kennedy also brings up the Cass Sunstein study, as he did during the hearings. Byron York did a wonderful job on NRO last week discussing why this study can not be used by any serious person to evaluate Alito’s record. Key quote:
“Even further, Sunstein said that he had employed ‘a high degree of discretion’in analyzing Alito's work. ‘A preliminary analysis suggests two points,' Sunstein wrote. ‘First, Judge Alito's opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law.’… Sunstein concluded with two more disclaimers. First, he said he was not saying whether Alito should be confirmed or not. And second, he said his findings must be regarded ‘as tentative and preliminary.’(emphasis added)Finally, we come to the ridiculously biased Knight-Ridder article which Kennedy called “a comprehensive review of Judge Alito’s published opinions.” Co-author Stephen Henderson was unable to competently defend the article on Hugh Hewitt’s radio program and Stuart Taylor mentioned it by name in an article on distortions of Judge Alito’s record in the media. Here’s Taylor’s take:
“I focus here not on the consistently mindless liberal hysteria of the New York Times' editorial page. Nor on such egregious factual errors as the assertion on C-SPAN, by Stephen Henderson of Knight Ridder Newspapers, that in a study of Alito's more than 300 judicial opinions, ‘we didn't find a single case in which Judge Alito sided with African-Americans ... [who were] alleging racial bias.’ This, Henderson added, is ‘rather remarkable.’A former Alito clerk, and proud liberal Democrat, Jeffrey Wasserstein also slammed the Knight-Ridder article in an op-ed soon after its publication. Our own Curt Levey also blogged on this bit of “results-oriented journalism” here.
What is remarkable is that any reporter could have overlooked the at least seven cases in which Alito has sided with African-Americans alleging racial bias. Also remarkable is the illiterate statistical analysis and loaded language used by Henderson and Howard Mintz in a 2,652-word article published (in whole or in part) by some 18 newspapers. It makes the highly misleading claim that in 15 years as a judge, Alito has sought ‘to weave a conservative legal agenda into the fabric of the nation's laws,’ including ‘a standard higher than the Supreme Court requires’ for proving job discrimination.”(emphasis added)
Yet despite all of this, Kennedy continues to refer to the Knight-Ridder article and other discredited studies to support his accusations.