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Kennedy Questions Alito's Commitment to Equal Justice Under Law

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Location: Washington, DC


KENNEDY QUESTIONS ALITO'S COMMITMENT TO EQUAL JUSTICE UNDER THE LAW

HIS MEMBERSHIP IN "CAP" AND RULINGS ON INDIVIDUAL RIGHTS CASES ARE TROUBLING EVIDENCE

Washington, DC: Today in his rounds of questioning Judge Alito, Senator Edward M. Kennedy pressed Judge Alito on his commitment to equal justice under the law by raising his membership in a radical anti-women, anti-minority alumni organization and several rulings on key cases involving individual rights. Kennedy's concern stems from the belief that the courts are the last -- and often the only - place where the poor, the powerless, and the underprivileged can find justice.

"Your affiliation with an organization that fought the admission of women into Princeton calls into question his appreciation for the need for full equality in this country," Senator Kennedy said. "Unfortunately, the same insensitivity shown by your decision to boast of your membership in a radically conservative organization fighting to turn back the clock on basic equality in your job application is evident in your handling of civil rights cases as a Judge. When I read many of your decisions, I question whether your are truly living up to the Supreme Court's promise of "Equal Justice Under Law."

Judge Alito boasted about his membership in Concerned Alumni of Princeton (CAP) when he applied for a Regan Administration job in 1985, yet now claims he doesn't remember the organization. Yet at the time, CAP was very much in the mainstream news (New York Times, Wall Street Journal, AP, etc) and every alumni received letters about it, both from the Princeton's President William Bowen and from the organization itself. Princeton Alum Senator Bill Bradley had very publicly disassociated himself with CAP because of its views and Senator Frist, also an alum, declared that it presented a "distorted, narrow and hostile view of the university." Kennedy pressed Judge Alito on his memory of CAP and whether or not he knew of CAP's extreme positions and out of the mainstream writings.

In Judge Alito's record as an appellate judge, he appears to favor the establishment over the individual, and to rule for the powerful defendant at the expense of the powerless plaintiff. A group of law professors at Yale Law School, analyzed over 400 of Alito's published opinions, and concluded that he consistently uses procedures and standards to rule against female, minority, and disability claimants. Kennedy raised several of these cases and asked Judge Alito to explain the pattern in his judging that shows the great lengths he goes to reject the claims of individual claims of individuals citizens whose rights have been violated.

Attached are supporting documents related to CAP and Judge Alito's cases.

CAP MATERIALS (In PDF format, available upon request)

1985 Job Application 1/10/05 Kyl Hearing Transcript 1983 Prospect: In Defense of Elitism 1984 Prospect: Cure for AIDS? 1973 Prospect: Bill Bradley Resigns from Advisory Board 1972 Prospect: Bradley does not concur 1975 Report to the Trustee Committee on Alumni Affairs co-submitted by Frist 1980 New York Times: Women Accepted by Men After Decade at Princeton 1985 Prospect: CAP letter to Princeton Alumni 1985 Prospect: Bill Bowen, Princeton President, letter 1985 Prospect excerpt on Gay Alliance of Princeton 1985 Prospect: Training Leaders, Not Killers; ROTC Is Popular Again Kennedy letter to Specter on CAP 1985 WSJ Editorial: Doing it Right 1985 AP: Princeton President Fights Charges by Conservative Alumn 987 New York Times: Departing President: William G. Bowen

CASE SUMMARIES (Included) Pirolli v. World Flavors, Inc. Bray v. Marriott Hotels Glass v. Philadelphia Electric Co. Nathanson v. Medical College of Pennsylvania Riley v. Taylor Key quotes on Alito Rulings Case List where Alito has ruled against the individual in favor of powerful interest

December 22, 2005

The Honorable Arlen Specter United States Senate Washington, DC 20510

Dear Mr. Chairman:

As you know, when Judge Samuel Alito applied for his job in the Office of Legal Counsel in the Meese Justice Department in November 1985, he submitted a list of his memberships and other activities to impress Attorney General Meese and Assistant Attorney General Charles Cooper with his enthusiastic "philosophical commitment" to their particular constitutional, legal, and political point of view.

Among the organizations he listed was "Concerned Alumni of Princeton" (CAP), an organization created in 1972, the year Judge Alito graduated. The organization was described in the press at the time and in its own literature as opposed to the increasing number of women, African Americans and Hispanics at the university. The organization also published articles critical of the rights of the disabled.

Our former Senate colleague Bill Bradley, a graduate of the university in1965, initially joined the advisory board for the group's magazine, "Prospect," but publicly separated himself from the group in 1973, because he felt it promoted a "right wing view" rather than the "balanced view" he had been led to believe it would present. In 1975 an official report by a committee of Princeton alumni that included William Frist, now Senator Frist, concluded that CAP's "distorted, narrow and hostile view of the University" had "misinformed and even alarmed many alumni" and "undoubtedly generated adverse national publicity."

The heated debate in the University community and in the press continued throughout the life of the organization from 1972 through 1986. For example, Senator Bradley's resignation letter was published in "Prospect" in September 1973, a New Yorker article covered the controversy in 1977, and the Princeton Alumni Weekly carried articles on the group as late as April and June of 1986. "Prospect" was originally mailed to CAP members and contributors, and beginning in 1974 to all graduates listed in the Alumni Directory. The Alumni Weekly was mailed to all living Princeton graduates.

It appears from recent press interviews that Judge Alito became involved with CAP through one of CAP's founders early in CAP's history. In spite of the prominence he gave to CAP in his 1985 application to the Justice Department and its well-known and controversial activities, Judge Alito's participation in CAP was not disclosed in the public documents relating to his 1987 nomination as U.S. Attorney for New Jersey or his 1990 nomination to the U.S. Court of Appeals for the Third Circuit. The subject was not discussed at his 1990 hearing. In fact, Senator Bradley, based on a recommendation Judge Alito had obtained from the judge for whom he had served as a law clerk, introduced and endorsed Judge Alito "one hundred percent" for the Third Circuit.

In view of CAP's troubling opposition to equal educational opportunity for women, minorities, and the disabled, it is important for the Committee to learn more about Judge Alito's involvement in this organization. However, even after his recollection was refreshed by a "document I recently reviewed" (presumably his 1985 job application to the Justice Department), Judge Alito's response to our recent questionnaire states that he cannot remember anything about his membership in CAP beyond what is stated in that document. Unless a further reading of the many documents relating to this issue restores his memory of the matter, we are unlikely to obtain any further information from him on this potentially important subject.

Clearly, to understand fully the importance of the partial facts known from secondary sources, and to avoid the prospect of a delay in our schedule to obtain the full story, we need answers to a number of questions before our hearings: - Was Judge Alito a member of or contributor to CAP, a participant in any of its meetings or on its mailing list, (1) in 1973, when Senator Bradley's resignation letter was published in Prospect; (2) in 1974, when the controversy was first aired in the New York Times; (3) in 1977, when a lengthy article on CAP appeared in the New Yorker; or (4) in 1986 when the debate over CAP continued in the pages of the Alumni Weekly? - What was the exact nature of Judge Alito's participation in CAP and his contacts or correspondence with its officers and staff during the years 1972-87? - Judge Alito lists other Princeton alumni activities in his 1990 and 2005 Committee forms, indicating that he has remained an active and interested alumnus throughout the relevant period. Did he ever personally express a view either publicly or privately on the CAP controversy or the positions advocated by CAP, as many alumni did? - Was anyone connected with CAP contacted regarding Judge Alito's involvement with CAP, either in connection with his New Jersey Bar application (1975), or in connection with his federal job applications and security clearances (1977, 1981, and 1985), his U.S. Attorney and Judicial nominations (1987, 1990), or his possible selection for the Supreme Court (2001, 2005)? - At any time before Senator Bradley appeared before our Committee in 1990 to introduce then-U.S. Attorney Alito to the Committee and to endorse his Third Circuit nomination, did Judge Alito write, say or do anything documenting his general attention to CAP news or his specific awareness that Senator Bradley had been a public critic of CAP? - Did Judge Alito inform Senator Bradley that he had been a participant in CAP before requesting or allowing Senator Bradley to recommend his confirmation as a judge on the Third Circuit? - During his 1987 or 1990 confirmation processes, did Judge Alito, the Justice Department (including the FBI), or the ABA provide the Committee with any information relating to Judge Alito's membership in CAP? - Would Senator Bradley's unqualified endorsement of Judge Alito for the Third Circuit have been affected if he had known of Judge Alito's involvement in CAP and his voluntary listing of his CAP membership in support of his selection as a Deputy Assistant Attorney General, the position which put him on track toward his later judicial appointment?

Answers to a large number of these questions are likely to be found in files in the possession of the Manuscript Division of the Library of Congress as part of the "Papers of William A Rusher 1940-1989." Mr. Rusher was Publisher of the National Review and an active founder and leader of CAP. According to the Library's Register of that collection, at least four of its boxes (142, 143, 144, 145) contain the files of "Concerned Alumni of Princeton," including clipping files, background information, correspondence and memoranda, financial records, fund-raising material, lists of supporters, minutes of meetings, issues and other items relating to "Prospect." Box 46 also contains materials relating to T. Harding Jones, a founder of CAP and editor of "Prospect," and a person who reportedly involved Judge Alito in CAP. There may also be other files with records of CAP leaders who were familiar with the nominee's role.

The Congressional Research Service has attempted to gain access to these files, following its usual policy of not disclosing its requestor, but Mr. Rusher has refused to permit access unless he is told which member(s) or committee(s) are seeking it, and unless he can control the use of the materials released.

It is likely that a formal request for access directly from you on behalf of the Committee would be received with more cooperation than the CRS has received so far, and we urge you to make such a request as soon as possible. In view of the importance of the material and its intended use as part of an official Senate inquiry, the request should be for access to the documents without any restrictions on the Committee's use of the information, unless he is aware of specific documents in those files that merit confidential treatment for a stated reason. The request should include the specified boxes and any other boxes containing materials relating to CAP, its activities, or personnel, including "Prospect."

Judge Alito's assertion that he cannot recall anything about his controversial involvement in CAP, requires us to find other ways of fulfilling our constitutional responsibility to get at the facts. The Rusher papers provide a readily available means of doing so. Certainly we do not want to leave the Committee, the Senate, and the nation open to an unwelcome surprise when the papers eventually become public after Mr. Rusher's death.

As always, we thank you for your cooperation and leadership, and your commitment to making the confirmation process as thorough as possible.

Sincerely,

Edward M. Kennedy

Pirolli v. World Flavors, Inc.

• Short description: Plaintiff, a young man with an IQ of 75, claimed that other employees created a hostile work environment and disparate treatment based on sex and disability. According to the plaintiff, coworkers physically assaulted him (including a coworker rubbing his penis against Pirolli's behind and as coworkers watched as another coworker attempted to push a broom pole into the plaintiff's behind). The plaintiff stated that he reported the incidents to his supervisor, but the supervisor failed to hail the harassment.

• Procedural setting: The trial court granted summary judgments, on all claims, to the defendants. The trial court dismissed the plaintiff's Title VII and ADA against his supervisor, on the grounds that individuals who are not employers cannot be held liable under those acts. The trial court granted summary judgment for the employer finding that the harassment was "macho horseplay and adolescent rough-housing" that did not constitute discrimination. Pirolli appealed, joined by the Equal Employment Opportunity Commission, which filed an amicus brief siding with him.

• Appellate ruling: The Third Circuit reversed the trial court, finding that what Pirolli experienced went beyond ordinary horseplay and constituted "persistent conduct that a reasonable jury could view as having occurred because of his sex and as severe and pervasive enough to create an abusive work environment." The majority concluded that a psychologist's report in conjunction with Pirillo's testimony raised a triable issue of fact. Judge Alito, however, agreed with the trial court not because Pirolli does not present triable issues but "because th[e] argument is not adequately presented."

Bray v. Marriott Hotels

• Short description: Marriott promoted a white employee instead of an African-American employee. The African-American employee sued Marriott, claiming racial discrimination in violation of Title VII of the Civil Rights Act of 1964.

• Procedural setting: The parties conducted discovery, and Marriott moved for summary judgment. The trial court held that the plaintiff had established a prima facie case of discrimination (Marriott did not appeal the ruling). However, the court also ruled that Marriott had rebutted the plaintiff's prima facie case by offering evidence of a nondiscriminatory reason for its promotion decision. Therefore, the court granted Marriott summary judgment. The plaintiff appealed.

• Appellate ruling: The Third Circuit majority reversed the trial court and held that the jury should decide whether Marriott violated Title VII. Judge Alito dissented and argued that the plaintiff had not presented enough evidence to go to the jury.

Nathanson v. Medical College of Pennsylvania:

• Short description: Nathanson applied for and was granted admission to the Medical College of Pennsylvania (MCP). Nathanson had several discussions with school officials regarding injuries she sustained in a car accident and the barriers her injuries posed to pursuing studies at MCP. Nathanson claimed she had made clear to school officials that she would need certain accommodations, mainly a special chair, in order to participate in medical school training. School officials argued that Nathanson never made her requirements clear. Nathanson sued MCP alleging violations of the Rehabilitation Act and tortuous interference with contract.

• Procedural setting: MCP moved for summary judgment and the District Court granted MCP summary judgment on all counts. Nathanson appealed.

• Appellate ruling: The majority affirmed the District Court's grant of summary judgment in favor of MCP on the tortious interference claim but reversed the District Court with regard to the Rehabilitation Act claim finding there were sufficient issues of fact requiring trial. Alito dissented and argued that Nathanson's Rehabilitation Act claim should be dismissed as well because she had not presented sufficient evidence to show that MCP failed to adequately accommodate her.

Riley v. Taylor:

• Short description: James Riley, an African-American, was convicted and sentenced to death for felony murder by an all white jury. After several unsuccessful post-conviction motions and appeals, Riley filed a motion in federal court to challenge his conviction.

• Procedural setting: In the District Court Riley argued that (1) jurors were wrongly excluded based on their race, violating the 14th Amendment's Equal Protection Clause; and (2) that the jury had been misled about their responsibility in applying the death penalty. The District Court denied his motion on all grounds, and a divided three judge panel affirmed, with Alito authoring the majority opinion. Ultimately the 3rd Circuit agreed to hear Riley's appeal en banc.

• Appellate ruling: The en banc majority held that the lower court failed to evaluate the proferred race-neutral reasons for excluding black jurors in the light of contradictory evidence about the high rate at which the same prosecutor's office had excluded blacks in the past. Alito dissented and minimized the majority's concerns by comparing the evidence of black juror exclusion to the tendency for President's to be left-handed.

Rouse v. Plantier

• Short description: A group of diabetic inmates sued various corrections officials claiming that they were deliberately indifferent to the plaintiffs' serious medical needs. Specifically, the diabetic plaintiffs argued that the defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment (by failing to provide basic medical treatment).

• Procedural setting: The trial court certified a class of plaintiffs consisting of all former, present, and future insulin-dependent diabetics incarcerated at the facility in question. The parties conducted discovery. The defendants then filed a motion for summary judgment: (1) on the merits of the claim or, alternatively, (2) for qualified immunity. The trial court granted summary judgment to one defendant on the merits, but denied the motion for the remaining defendants. The trial court also denied the remaining defendants' motion on the grounds of qualified immunity. The defendants appealed the ruling on qualified immunity (the Government is allowed to appeal immediately an adverse ruling on qualified immunity).

• Appellate ruling: Judge Alito ruled that the trial court erred in its analysis of qualified immunity. He ruled that the plaintiffs were a medically diverse group, and the court should consider qualified immunity for each group of plaintiffs and each individual defendant. He vacated the trial court's ruling and remanded the case. The opinion was unanimous.

LIST OF STUDIES OF ALITO CASES

Knight-Ridder -- "never found a government search unconstitutional"

Yale Law School Professors -- "ruled for government in almost every (criminal) case reviewed"

Washington Post -- "very little sympathy for those asserting rights against the government"

Prof. Cass Sunstein -- Univ. of Chicago Law School -- "against individual rights 84% of the time.

QUOTES FROM JUDGES

Judge Rendall -- "Gestapo-like"

Judge Chertoff -- "warrant is not a license to search everyone inside"

CASE LIST

• In Rouse v. Plantier (1999) (majority), a group of diabetic inmates sued prison officials for being "deliberately indifferent" to their need for insulin. In response, the prison officials blamed the inmates for their poor health. The trial court held that there was a legitimate factual question whether the inmates' constitutional rights had been violated. You disagreed. Rather than allow the jury to decide the issue, you required a complicated individual-by-individual analysis. You made it much more difficult for the plaintiffs to reach a jury and prevail. • In Keller v. Orix Credit Alliance, Inc. (1997) (majority), you kept a meritorious case from a jury. The plaintiff claimed that he was denied a promotion and fired due to his age. His former boss told him: "If you are getting too old for the job, maybe you should hire one or two young bankers." That sure sounds like age discrimination. But you held that the statement, by itself, was insufficient. You concluded that the issue should not go to the jury. Three of your colleagues dissented. • In Kleinknecht v. Gettysburg College (1993) (dissent), a twenty-year-old lacrosse player suffered a heart attack during warm-up drills. It took an hour for an ambulance to arrive, and the boy was declared dead forty-three minutes later at the hospital. The boy's parents sued Gettysburg College. Your colleagues held that the College owed the dead boy a duty to respond swiftly to his medical emergency and that the jury should decide whether it breached that duty. You dissented and argued that the facts were insufficient to establish that Gettysburg College breached its duty of care. • In Chittister v. Department of Community & Econ. Dev. (2000) (majority), a former state employee sued a Pennsylvania department—under the Family & Medical Leave Act—for firing him while he was on approved, paid sick leave. The plaintiff went to trial and won a jury verdict. The trial court, however, overturned the verdict, and you affirmed the decision. You held that the statute was unconstitutional because it created "a substantive entitlement to sick leave." And the view of the Commerce Clause you expressed in the case was later rejected by the Supreme Court. • In Clowes v. Allegheny Valley Hosp. (1993) (majority), a 59-year-old nurse claimed that her employer had constructively discharged her based on her age. The plaintiff won a verdict. Nonetheless, you vacated that victory because the plaintiff did not allege "many of the factors commonly cited by employees who claim to have been constructively discharged." You stated that "unfair and unwarranted treatment is by no means the same as constructive discharge." So, in your view, the evidence was enough to show unfair treatment but not enough to support the verdict. • In Charpentier v. Godsil (1991) (majority), the plaintiff suffered from bipolar manic-depressive psychosis. While in police custody, he began to cry hysterically and beat the walls and doors of his cell. Eventually, a nurse contacted the facility's physician, who prescribed a tranquilizer. Instead of going to the facility, the doctor stayed home. Two guards entered the cell and beat the man, who sued the physician for malpractice. The jury agreed and awarded damages. You reversed under a defense the doctor never raised. So you raised his defense for him and then ruled in his favor.

http://kennedy.senate.gov/~kennedy/statements/06/01/2006111817.html

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