Setting a Bad Example

Goodwin Liu, an assistant professor at UC Berkeley’s law school, testified against Judge Alito late this afternoon. After explaining that his study of Alito’s judicial record found that the judge almost always sides with the government, Liu announced that he would give three examples. His first – and undoubtedly, in his mind, best – example was Garner v. Memphis Police Dept., a fleeing felon case. Alito’s critics love this case, because it involves the fatal shooting of an eight-grader. But the case is irrelevant to Liu’s analysis of Alito’s judicial record, because Alito never heard the case as a judge. Instead, he wrote a memo about the case while working for the solicitor general's office, long before becoming a judge. In addition, the memo is not easily characterized as pro-government, because Alito recommended against asking the Supreme Court to reverse the Sixth Circuit’s decision, which struck down the Tennessee "fleeing felon" statute that authorized the shooting.

I suppose when your goal is to paint the nominee as a jack-booted thug, minor details (like Alito’s recommendation and the fact that it wasn’t part of his judicial record) are mere distractions. But Alito supporters take heart. If the Left’s current best example of why Alito is a pro-government judge is a memo he wrote long before becoming a judge, that line of attack must really be floundering.