# Now serving #3... Samuel Alito **URL:** \ **Category:** Great Debates\ **Created:** [October 31, 2005, 12:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702 "2005-10-31T12:46:56Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 31, 2005, 6:26pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/81 "2005-10-31T18:26:22Z")
> [@Left Hand of Dorkness](#): > > First, thanks, **Bricker** , for the clarification. It does seem to my uneducated legal mind that SDP introduces the element of “the social evils of battered wives” into the judge’s responsibility: that is, the judge now has to decide whether the battering would constitute an unnecessary burden on the woman, or where it is in relation to “the boundaries between the individual’s liberty and the demands of organized society.” If it does, then - honestly - what sort of limits exist at all? ANY law could be overturned. If your view is correct, it makes judges into a second, super-legislature. > [@](#): > > Second, a question. The way I heard the Pennsylvania (?) law described on the radio, it had exceptions for cases of abuse or “disfunctional marriages.” This last one seems bizarre to me: if a woman is considering having an abortion without telling her husband, how can that possibly NOT be a disfunctional marriage? I agree. > [@](#): > > Third, I just heard Al Franken on the radio discussing a case in which Alito made a dissent in a discrimination case where he argued that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles–e.g., if I hire an Asian gardener because I sincerely believe that Asians are the best gardeners, then my racial discrimination ought to be legal. Is this a fair description of his belief? That seems wonky to me. I don’t think so. There is no part of Fourteenth Amendment analysis that turns on subjective belief over objective effect of classifications - so far as I’m aware. I’d be very surprised to hear that the above describes his personal beliefs, but I suppose it’s possible. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [October 31, 2005, 6:27pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/82 "2005-10-31T18:27:52Z")
> [@Bricker](#): > > Yes. The entire concept of substantive due process is judicial activism, from _Lochner_ onwards. Actually, substantive due process goes back the _Dred Scott_ decision. [http://en.wikipedia.org/wiki/Due\_process#substantive\_due\_process](http://en.wikipedia.org/wiki/Due_process#substantive_due_process) And it is the mechanism by which most provisions of the Bill of Rights have been held to bind state as well as federal governments. Do you really want to toss all of that over the side? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 6:28pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/83 "2005-10-31T18:28:06Z")
> [@elucidator](#): > > Can’t be right. Too stupid. _Sincere_ racism is ok? This point will be raised, and clarified/squirmed away from. No way in Hell will it stand scrutiny as described, because it is indefensible in the eyes of the vast majority of Americans. Well, as I said earlier, my Google fu when it comes to legal cases is pretty shaky; but my first round of digging is turning up nothing of the sort. I’ve found a case [wherein he makes it harder for the plaintiff to prove discrimination](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=961252p), but that’s not at all the same thing. I’ll also try to figure out what Franken was on about, but if this rings any bells with anyone, I’d love to hear the details. Daniel ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [October 31, 2005, 6:29pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/84 "2005-10-31T18:29:40Z")
> [@Left Hand of Dorkness](#): > > ." > > Third, I just heard Al Franken on the radio discussing a case in which Alito made a dissent in a discrimination case where he argued that discrimination based on protected classes should be legal if the employer made a hiring decision based on a sincere belief in racist principles–e.g., if I hire an Asian gardener because I sincerely believe that Asians are the best gardeners, then my racial discrimination ought to be legal. Is this a fair description of his belief? That seems wonky to me. If you want to read the decision and decide for yourself… > **[FindLaw's United States Third Circuit case and opinions.](https://caselaw.findlaw.com/court/us-3rd-circuit)** > > FindLaw's searchable database of United States Third Circuit decisions since January 1995 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 31, 2005, 6:29pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/85 "2005-10-31T18:29:42Z")
> [@BrainGlutton](#): > > At this level there is no difference, and anyone who tries to argue otherwise is whistling past the graveyard. Just put your lips together, and blow? I don’t agree. The correct and principled judicial philosophy makes political beliefs irrelevant. Do we care if the ref at the Bengals - Green Bay game is a fan of Green Bay or Cincinatti? No. Because his job is to interpret the rules as they exist - not make up new ones during the game. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 31, 2005, 6:29pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/86 "2005-10-31T18:29:43Z")
> [@BrainGlutton](#): > > At this level there is no difference, and anyone who tries to argue otherwise is whistling past the graveyard. Nice little Halloween reference! 🙂 I disagree. There are Senators who look at qualifications regardless of politics. Surely the Republicans who voted for RBG didn’t agree with her politics, and surely some of the Democrats who recently voted for Roberts didn’t agree with his politics. The swing vote, if there is one in this case, will certainly be of that kind. So, even if most Senators vote purely on political grounds, the vote could easily be decided on the basis of qualifications and judicial philosophy, rather than politics. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 31, 2005, 6:30pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/87 "2005-10-31T18:30:42Z")
> [@BrainGlutton](#): > > Actually, substantive due process goes back the _Dred Scott_ decision. [http://en.wikipedia.org/wiki/Due\_process#substantive\_due\_process](http://en.wikipedia.org/wiki/Due_process#substantive_due_process) And it is the mechanism by which most provisions of the Bill of Rights have been held to bind state as well as federal governments. Do you really want to toss all of that over the side? I’d disagree with whoever wrote the Wikipedia article there. Dred Scott was a matter of proceedural due process more than substantive due process. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [October 31, 2005, 6:32pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/88 "2005-10-31T18:32:58Z")
> [@Bricker](#): > > What if the rule were that the father of the unborn child had to be informed? Not have a veto power over the abortion - just be informed. 1. What would be the state interest in doing that? 2. How is the state supposed to determine who made a woman pregnant? What if she doesn’t want to tell or doesn’t know? What if she says it wasn’t her husband but some guy she met on the train and she doesn’t know his name? Since there is no way for the state (or in some cases even the pregnant woman) to know who the “father” is without a pre-natal DNA test- Something which is not possible in the first trimester and which requires invasive procedures (which are not risk free) thereafter- then there is no practical way to enforce a law which attempts to inform them. If she is unable or unwilling to say who the “father” is, then what? I also don’t think the father has any right to know unless and until the woman feels like telling him or there is a live birth. If he has a child, then he has a right know. He does not have a right to know that a woman he has had sex with is getting an abortion. Even if the sperm came from him, that becomes completely immaterial as soon as the pregnancy si terminated and I can’t see that any state interest is served by telling him (assuming the state even has any way to know who he is, which it doesn’t). ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [October 31, 2005, 6:37pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/89 "2005-10-31T18:37:40Z")
> [@scule](#): > > Can I ask a question as an outsider? If this guy was confirmed, how would he be able to assist in over-turning Roe vs. Wade? The federal court system in the U.S. may only rule on actual cases, so he couldn’t overturn Roe v. Wade until a case presented itself to the Court with those issues in play. He wouldn’t have to wait long, though. Several come available every year, because many states and the federal government are constantly trying to undermine women’s rights with unconstitutional (for now, anyway) restrictions on abortion. –Cliffy ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 6:42pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/90 "2005-10-31T18:42:50Z")
> [@samclem](#): > > If you want to read the decision and decide for yourself… > > [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=971559p](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=971559p) Oh, good Lord. Thanks for the link, but that’s some dense reading! I only read the dissent, and I’ve still got a headache. However, I see nothing in it to back up what I understood Franken to be saying. I figure one of the following is true: 1. I misunderstood Franken; 2. I misunderstood Alito; or 3. Franken (or his flunkies) misunderstood Alito. My guess is #3, but I’ve got nothing much to base that on. Thanks again! Daniel ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [October 31, 2005, 6:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/91 "2005-10-31T18:46:02Z")
> [@Bricker](#): > > Just put your lips together, and blow? > > I don’t agree. The correct and principled judicial philosophy makes political beliefs irrelevant. Do we care if the ref at the Bengals - Green Bay game is a fan of Green Bay or Cincinatti? No. Because his job is to interpret the rules as they exist - not make up new ones during the game. Interesting you bring up the point of refs becuase they clearly change their calls depending on the current situation. If a game is generally being played fairly they will swallow thier whistles but if one side begins to break the rules in a way that makes the game unfair they will call the penalty. It should also be noted that the rule book for football is thicker than the Constitution. I’d like to hear your response to BrianGlutton’s post: > [@BrianGlutton](#): > > Actually, substantive due process goes back the Dred Scott decision. [http://en.wikipedia.org/wiki/Due\_pr...ive\_due\_process](http://en.wikipedia.org/wiki/Due_pr...ive_due_process) And it is the mechanism by which most provisions of the Bill of Rights have been held to bind state as well as federal governments. Do you really want to toss all of that over the side? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 6:46pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/92 "2005-10-31T18:46:38Z")
[One more interesting link](http://www.isthatlegal.org/archives/2005/10/white_house_tal.html#more): the Republican talking points on Alito. They list more cases that might be worth discussing. Daniel ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 31, 2005, 6:47pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/93 "2005-10-31T18:47:55Z")
> [@Bricker](#): > > The constitution does not mandate that a law be wise, or caring, or concerned with battered women getting the shit beat out of them. This is quite correct. The Constitution does no such thing. On the other hand, some of us are concerned that **justice** be done. I gather that that is no longer a concern of conservative Republicans. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [October 31, 2005, 6:51pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/94 "2005-10-31T18:51:31Z")
> [@BrainGlutton](#): > > Actually, substantive due process goes back the _Dred Scott_ decision. [http://en.wikipedia.org/wiki/Due\_process#substantive\_due\_process](http://en.wikipedia.org/wiki/Due_process#substantive_due_process) Just to clear up a misconception, the Wikipedia article and conservatives’ spin nothwithstanding, _Dred Scott_ was, is, and will continue to be, a strict constructionist decision. ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [October 31, 2005, 7:00pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/95 "2005-10-31T19:00:58Z")
> [@John F](#): > > I might be misunderstanding the strategies in play. > > Won’t a filibuster trigger the nuclear option and allow the right to more or less slam dunk someone in place? The “nuclear option” was last seriously discussed when it was easy to float the idea that the President should really have the right to make his appointments without serous impedance. Since then, our Prez has given us all vivid reason to think his nominees for any position should be strenously vetted. I was fine with Roberts (go ahead, search up my comments on any Roberts thread) but Alito looks like bad news. I’m open to being convinced otherwise but I hope there are at least a dozen Democratic Senators gathering together some long and interesting speeches to read into the record if need be. (Doing phone books and recipes for trout almondine is so outré) ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [October 31, 2005, 7:36pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/96 "2005-10-31T19:36:36Z")
> [@Left Hand of Dorkness](#): > > Oh, good Lord. Thanks for the link, but that’s some dense reading! I only read the dissent, and I’ve still got a headache. > > However, I see nothing in it to back up what I understood Franken to be saying. I figure one of the following is true: > > 1. I misunderstood Franken; > 2. I misunderstood Alito; or > 3. Franken (or his flunkies) misunderstood Alito. > > My guess is #3, but I’ve got nothing much to base that on. > > Thanks again! > Daniel You misunderstood Alito. He did claim (essentially) that racial bias doesn’t matter if an employer sincerely believes he is hiring the “best qualified” candidate. Here is a comment on Judge Alito’s dissent from tne text of the majority decision as written by Judge Mckee: > [@](#): > > 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. Thus, the issue here, is not merely whether Marriott was seeking the “best” candidate but whether a reasonable factfinder could conclude that Bray was not deemed the best because she is Black. Indeed, Title VII would be eviscerated if our analysis were to halt where the dissent suggests. Alito also claimed that the racial bias didn’t matter “so long as the employer’s proffered legitimate reason for the employment decision remains intact .” In Bray Vs. Marriott (the case under discussion), Alito claims that a slight difference in performance evauation scores was sufficient to constitute a “legitmate proffered reason” for the decision but the majority said the evaluations were suspect. So Franken was right about part of Alito’s decision, but it wasn’t the _only_ reason for his decsion (and it _was_ a dissent, so obviously the majority didn’t buy his arguments). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 31, 2005, 7:52pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/97 "2005-10-31T19:52:11Z")
> [@Polycarp](#): > > This is quite correct. The Constitution does no such thing. > > On the other hand, some of us are concerned that **justice** be done. > > I gather that that is no longer a concern of conservative Republicans. I’m very concerned that justice be done. Judges doing whatever they please, without regard to the written law, is not a reliable recipie. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 31, 2005, 7:53pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/98 "2005-10-31T19:53:22Z")
> [@Diogenes the Cynic](#): > > Here is a comment on Judge Alito’s dissent from tne text of the majority decision as written by Judge Mckee: > Alito also claimed that the racial bias didn’t matter “so long as the employer’s proffered legitimate reason for the employment decision remains intact .” In Bray Vs. Marriott (the case under discussion), Alito claims that a slight difference in performance evauation scores was sufficient to constitute a “legitmate proffered reason” for the decision but the majority said the evaluations were suspect. > > So Franken was right about part of Alito’s decision, but it wasn’t the _only_ reason for his decsion (and it _was_ a dissent, so obviously the majority didn’t buy his arguments). Hmm…if McKee said this, it certainly gets Franken off the hook if he does misunderstand Alito’s position. However, I’m still having trouble seeing where McKee gets his interpretation of Alito. It seems to me that Alito was saying that, if I hate Mexicans with all my heart, and a Mexican guy applies for a job as database designer at my company, and he’s unable to figure out how to turn the computer on, he can’t claim racial discrimination when I don’t hire him, since my legitimate reason (his incompetence with computers) remains intact, even if I probably wouldn’t have hired him anyways. That does seem on its face like a reasonable attitude to me, although I’ve not thought it through very carefully. And it’s very different from saying that, if I fail to hire the Mexican guy because I’m explicitly convinced that Mexicans can’t turn on computers, that my prejudice is sufficient to protect me from charges of discrimination. Daniel ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [October 31, 2005, 7:57pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/99 "2005-10-31T19:57:33Z")
In the _Marriott_ case, the implications of Alito’s perspective are spelled out, not by Alito (and not dubbed in by an inventive Al Franken) but rather opined by the majority: > [@](#): > > 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. Thus, the issue here, is not merely whether Marriott was seeking the “best” candidate but whether a reasonable factfinder could conclude that Bray was not deemed the best because she is Black. Indeed, Title VII would be eviscerated if our analysis were to halt where the dissent suggests. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [October 31, 2005, 7:57pm UTC](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702/100 "2005-10-31T19:57:56Z")
> [@Bricker](#): > > I’m very concerned that justice be done. > > Judges doing whatever they please, without regard to the written law, is not a reliable recipie. And how can we know that judges aren’t using “strict constructionism” as cover for deciding however they’d like to anyway, especially given that so often the “strict constructyionism” decisions coincide with what you’d expect from a social conservative? Tends to make us on the left rather suspicious, for some reason. [Previous page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=4) [Next page](https://boards.straightdope.com/t/now-serving-3-samuel-alito/328702.md?page=6)