January 09, 2006

Kennedy rebuttal.

RNC's response to Sen. Kennedy's (D-MA) opening statement.

Sen. Ted Kennedy (D-MA):
“And In His Writings And Speeches, He Has Supported Level Of Overreaching Presidential Power That Frankly Most Americans Find Disturbing And Even Frightening. In Fact, Is Extraordinary That Each Of The Three Individuals This President Has Nominated For The Supreme Court -- Chief Justice Roberts, Harriet Miers, And Now Judge Alito, Has Served Not Only As A Lawyer For The Executive Branch But Has Defended The Most Expansive View Of Presidential Authority.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:
As A Federal Judge, Judge Alito Has Consistently Approached Cases Based On The Facts And The Law. His Record Demonstrates Appropriate Respect For Precedent And For The Separation Of Powers, Which Includes The Court's Role As A Bulwark Against Over-Reaching By The Coordinate Branches.

Sen. Ted Kennedy (D-MA):
“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's 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.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:
As The Washington Post Recently Noted In An Editorial, "[J]udge Alito's Dissents Are Not The Work Of An Unblinking Ideologue ... Judge Alito's Dissents. Are The Work Of A Serious And Scholarly Judge Whose Arguments Deserve Respect - A Respect Evident Among His Colleagues Even When Their Positions Differ." (Editorial, "Judge Alito Dissenting," The Washington Post, 1/8/06)

Jeffery Wasserstein, A Former Alito Clerk Who Describes Himself As "A Registered Democrat Who Supports Progressive Causes," Points Out That Judge Alito Is Not The "Conservative Ideologue" Portrayed By Liberal Groups And States That Attempts To Label Judge Alito As An Ideologue Are "Unfair And Distort[] His Record On The Bench." Moreover, Wasserstein Notes That Judge Alito Is "The Consummate Professional" Who Is "Capable Of Setting Aside Any Personal Biases He May Have When He Judges" And Who "Approaches Each Case With An Open Mind." (Jeffrey N. Wasserstein, Op-Ed, “Don’t Label Judge Alito A Conservative Ideologue,” [Passaic County, NJ] Herald News, 12/11/05)

Sen. Ted Kennedy (D-MA):
“Judge Alito Has Not Been On One Single Opinion On The Merits In Favor Of A Person Of Color In Alleging Race Discrimination On The Job.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:
Judge Alito Has Repeatedly Ruled In Favor Of Minorities Making Allegations Of Racial Discrimination In Employment:

In Smith V. Davis, 248 F.3d 249 (3d Cir. 2001), Judge Alito Voted To Reverse A Grant Of Summary Judgment Against An African American Man's Claim That He Had Been Discriminated Against In Employment On The Basis Of Race.

In Zubi V. AT&T Corp., 219 F.3d 220 (3d Cir. 2000), Judge Alito Dissented From The Majority's Opinion Which Foreclosed The Plaintiff's Race Discrimination Lawsuit Under Section 1983. In His Dissent, Judge Alito Explained That He Would Have Subjected The Suit To A Longer Statute Of Limitations Provided Under Federal Law, Which Would Have Permitted The Suit To More Forward.

In Goosby V. Johnson & Johnson Medical, Inc., 228 F.3d 313 (3d Cir. 2000), Judge Alito Voted To Reverse The District Court's Grant Of Summary Judgment Against The Plaintiff. Judge Alito And His Colleagues Concluded That The Female African American Plaintiff Had Introduced Sufficient Evidence To Question Whether The Employer Had In Fact Given Her Lower-Quality Assignments Due To Her "Objective" Scores On Certain Evaluations, As The Employer Maintained.

In Collins V. Sload, No. 01-4529 (3d Cir. 2004), Judge Alito Joined A Per Curium Opinion Reversing The District Court's Dismissal Of A Pro Se Title VII Complaint Alleging Racial Discrimination. The District Court Had Dismissed For Failure To Exhaust Administrative Remedies. The Panel Concluded That The Question Could Not Be Resolved On The Record And Remanded For Further Proceedings.

In Pope V. AT&T, 99-5449 (3d Cir. 2001), Judge Alito Joined A Per Curiam Opinion Reversing The District Court's Grant Of Summary Judgment Against An African American Man Alleging Race Discrimination Under Section 1981. The Panel Concluded That The Plaintiff Had Submitted Significant Evidence That AT&T's Stated Reason Was Pretextual, And Remanded For Trial.

Sen. Ted Kennedy (D-MA):
“And When I Look At That Record In Light Of The 1985 Job Obligation To The Reagan Justice Department, Is Even More Troubling. That Document Lays Out An Ideological Agenda That Highlight His Pride In The Long -- Belonging To An Alumni Group At Princeton That Opposed The Admission Of Women And Proposed To Curb The Admission Of Racial Minorities.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:
Sen. Kennedy Ignores The Fact That, Under “Objectives,” CAP Lists Diversity Goals:

“2. A Faculty Which, Without Any Attempt At Strict Numerical Proportion, Is Reasonably Representative Of The Major Trends In American And World Thought Today, As These Trends Affect The Relevant Departments.” (“Concerned Alumni Of Princeton: Our Objectives,” Prospect, 1/28/74)

“3. A Student Body Which, Again Without In Any Sense Reaching For Specific Numerical Proportions, Represents Far Better Than Princeton Does Today, A Fair Cross-Section Of The Future Leadership Of This Country - Not Only In Scholarly Endeavors, Or In Political Or Economic Philosophy, But In Business, Government, The Professions, Science (Applied As Well As Pure), And The Armed Forces.” (“Concerned Alumni Of Princeton: Our Objectives,” Prospect, 1/28/74)

CAP Praised Princeton’s Diversity:

Prospect Magazine Praises Princeton’s Diversity. “In The Course Of The Last Ten Years The Admissions Office Has Parlayed This Rich Applicant Pool Into A Newly Diverse Student Body. As Women, Blacks, And Hispanics Assume More Prominent Roles In The Nation’s Elite, Princeton Will Maintain Its Place As A Training Ground For Leadership.” (“Princeton University Today: A Positive Overview,” Prospect, Spring 1978)

“As Undergraduates These Students Provide A New Dimension Of Diversity And A New Perspective On Social Issues.” (“Princeton University Today: A Positive Overview,” Prospect, Spring 1978)

“As Graduates They Open New Realms Of Alumni Achievement, Bringing The University’s Influence Into New Spheres Within Society.” (“Princeton University Today: A Positive Overview,” Prospect, Spring 1978)

Moreover, Judge Alito Took A Personal Stand Against Discrimination While At Princeton:

“At Princeton, [Princeton Classmate Mark] Dwyer And Alito Chose To Take Their Meals At Stevenson Hall, A University-Run Alternative To The Private Eating Clubs That Are Somewhat Akin To A Fraternity System. Dwyer Called It A ‘Muted Statement’ Against The Selective Nature Of The Clubs.” (Nancy Benac, “Alito Proves You Don’t Have To Be Loud To Leave Your Mark,” The Associated Press, 1/3/06)

“[Alito] Shunned The University’s Selective Private Clubs And Instead Belonged To Stevenson Hall, A Social And Eating Club That Was More Egalitarian Because It Was Open To All Students.” (Greg Miller, “Alito Has Kept His Politics to Himself,” Los Angeles Times, 11/3/05)

Sen. Ted Kennedy (D-MA):
“[Judge Alito’s Record] Expresses Outright Hostility To The Basic Principle Of One Person, One Vote, Affirmed By The Supreme Court Is Essential To Ensuring All Americans Have A Voice In Their Government.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:
Judge Alito Has Been Quoted As Saying That The Principle Of One-Person, One Vote Is A Bedrock Principle Of American Law. He Has NEVER Expressed Hostility To The Principle.

White House Spokesman Steve Schmidt: “Judge Alito Believes And Has Told Senators That He Believes 'One Man One Vote' Is Bedrock Principle.” (David Kirkpatrick, “White House Says Alito Allayed Fears On Districting,” The New York Times, 11/23/05)

Sen. Ted Kennedy (D-MA): “When He Was Before This Committee In 1990 Applying For A Job To The Circuit, He Promised Under Oath That He Would Recuse Himself From Cases Involving Vanguard. The Mutual-Fund Company In Which He Had Most Of His Investments. As A Judge, He Participated In The Vanguard Case Anyway, And Has Offered Many Conflicting Reasons To Explain Why He Broke His Word.” (Sen. Ted Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/9/06)

The Facts:
In 1994, Sen. Kennedy Defended Judge Stephen Breyer When He Was Questioned Over Recusals:

“The White House Scrambled … To Defuse Perhaps The Most Thorny Potential Problem Area For Breyer – Possible Conflicts Of Interest Over His Investment In Lloyd’s Of London. Recent Media Reports Have Raised Questions About Whether Breyer Should Have Recused Himself From Eight Superfund Toxic Waste Cases That Indirectly Affected The Global Insurance Syndicate.” (Andrew Miga, “Breyer To Face Questions On Superfund Cases,” The Boston Herald, 7/12/94)

“Breyer Reportedly Recused Himself From Cases Involving Asbestos Damage, But Made Rulings On Superfund Cases.” (Andrew Miga, “Breyer To Face Questions On Superfund Cases,” The Boston Herald, 7/12/94)

“Sen. Edward M. Kennedy And Sen. Howard M. Metzenbaum, Democrat Of Ohio, Squabbled Over Whether Breyer Had Exercised Poor Judgment In Ruling On Environmental Cases While He Held Investments In A Firm That Insures Polluters.” (Ana Puga, “Biden Accuses Breyer Of Elitism,” The Boston Globe, 7/15/94)

Kennedy: “You’ve Asked For My Opinion Whether Judge Breyer’s Committed A Violation Of Judicial Ethics In Investing In Lloyds Name And Insurance Underwriting While Being A Federal Judge. In My Opinion, There Was No Violation Of Judicial Ethics.” (Sen. Edward Kennedy, Committee On The Judiciary, U.S. Senate, Hearing, 7/14/94)

Legal Ethics Experts Have Repeatedly Defended Judge Alito’s Decision Not To Recuse Himself:

Professor Ronald D. Rotunda: “[Neither Federal Statutes, Nor Federal Rules, Nor The Model Code Of Judicial Conduct Of The American Bar Association Provide That A Judge Should Disqualify Himself In Any Case Involving A Mutual Fund Company (E.G., Vanguard, Fidelity, T. Rowe Price) Simply Because The Judge Owns Mutual Funds That The Company Manages And Holds In Trust For The Judge.” (Ronald D. Rotunda, Professor Of Law George Mason University, Letter To Senator Arlen Specter, 11/4/05)

Professor Geoffrey C. Hazard, Jr.: “In My Opinion Judge Alito Handled It Quite Properly, In Correcting A Situation In Which He Can Be Said To Have Made A Mistake About Recusal.” (Geoffrey C. Hazard, Jr., Professor Of Law University Of Pennsylvania, Letter To Senator Arlen Specter, 11/3/05)

Professor Thomas D. Morgan: “Recent Press Accounts Suggest That Some Believe It Was Improper For Judge Samuel Alito To Have Participated In A Case Called Monga V. Ottenberg, Decided By A Panel Of The Third Circuit In 2002. In My Opinion, There Is No Basis For Suggesting His Action Was In Any Way Improper.” (Thomas D. Morgan, Professor Of Law George Washington University, Letter To Senator Arlen Specter, 11/3/05)

Professors Steven Lubet And David McGowan: “Supreme Court Nominee Samuel A. Alito Jr. Did Not Play Fast And Loose With Judicial Ethics Rules In A 2002 Appeal Involving The Vanguard Mutual Fund Company, As Some Recent Reports Suggest.” (Steven Lubet and David McGowan, Op-Ed, “Judicial Temperament,” The [Baltimore, MD] Sun, 11/28/05)

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