Eminent Domain

From the Knight Ridder article..." A Knight Ridder review of Alito's 311 published opinions on the 3rd Circuit Court of Appeals - each of singular legal or public policy importance - found a clear pattern. Although Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses."

This is where some of the dishonesty of the article lies. It's more than a "trend," as Henderson tries to backpedal in the radio interview. He said in the article that it was a "clear pattern." The word pattern is defined as "A consistent, characteristic form, style, or method..." by dictionary.com. The word trend is defined as "A general tendency or inclination" by the same source. I do not see those words as synonymous or interchangeable at all, espcially not in a legal context. Pattern, the word Henderson used in the actual article, is more definite and concrete. Only when he is challenged does he back off and try to claim it's a trend (he's looking for a little wiggle room now).

There is another level of dishonesty in the article and I should have addressed this in my original post. Judge Alito is on a federal appeals court. He is bound by the precedent of the US Supreme Court. The real question that Henderson should be asking is this: Do his decisions faithfully follow the precedent of the Court? This is also where your analysis of the situation runs afoul. Maybe Judge Alito isn't siding with criminal defendents, or finding merits in bias claims, or supporting individual rights claims... so what? What if he is applying the law that the Supreme Court has decided? Then it's not his fault in the least if you don't like how he rules. He is bound by the guidance of the Court.

Look at Alito's decision in Planned Parenthood v Casey. He does his best to apply the abortion law framework (the mess that it was) from the US Supreme Court. He did a pretty good job of it too. Four Justices agreed with his analysis (Chief Justice Rehnquist adopted much of Alito's reasoning into his dissent, joined by Justices Scalia, White, and Thomas). Alito did his job as an appeals court judge to the best of his ability.

That is the real dishonesty of this horrible article. The authors fail to educate the public on the role and extent of the federal appeals courts. They fail to show if Judge Alito's decisions follow Supreme Court precedent. And they fail to show how much acceptance the Supreme Court eventually has of Judge Alito's rulings.

You sure are comment happy lately.

I'm just trying to point out the dishonesty of the article's line of attack...

He's an appeals court judge, so consistent decisions are actually good.

He's an appeals court judge, so he's bound by the precedent of the Supreme Court.

The article makes it look like this "clear pattern" (not just a "trend") is solely the personal agenda of Judge Alito.

As far as Goosby, what did the court rule? They reversed the summary judgment and sent the case back to the district court. Yes, they said that she hadn't satisfied elements of her other claims, but did her case get remanded? Did the summary judgment get thrown out and did she get another chance in district court? Yes. This splitting hairs of "oh well they didn't say she was 100% in the right" is absurd. If I was in her position, I'd be pretty pleased to get another crack at it in the lower court.

Look at this part of the decision...

"plaintiff 's argument . . . does not provide a jury with sufficient evidence from which an inference of retaliation can be made. Plaintiff does not, and cannot, contest that her position was held open to her for a full 26 weeks of disability leave. . . Further, plaintiff concedes that defendant requested from her, prior to the expiration of her sick leave, a return to work authorization, and that she did not provide such an authorization until almost a month after her sick leave expired. No [**25] inference of retaliation can be rationally drawn from these facts.
App. at 603-4.

We agree. In addition, the time frame between Goosby's EEOC filing and the alleged retaliation weighs against the causation that she must establish. There was nearly a full year between the first filing with the EEOC and Goosby's attempts to return to work on restricted duty, and almost fifteen months passed before she was permanently replaced and ultimately terminated. Although such a lapse may not prevent a plaintiff from establishing the required nexus in every case, given the circumstances here Goosby can not establish that a genuine dispute as to the material fact of causation. There is nothing to suggest any link between the EEOC filing and the adverse job action that followed."

...this tells Goosby exactly what's wrong with her case. That's a clear message to her lawyer what he's got to overcome on remand to argue the claim properly and win. The 3rd Circuit is saying "don't argue these points because they will get you nowhere." How evil of Judges Alito, McKee, and Fullam! They're helping Goosby out and being explicit and clear about it.

Hey, I guess I don't live in the real world. Here in law school land, we're taught something very important from the first day of class: words matter. Words matter in criminal statutes, they matter in contracts, and they matter in your pleadings and motions.

In your "real world," I bet that you don't see much of a difference between someone being "negligent" or "reckless." In the law, those are two very important distinctions in criminal law. They are totally different states of mind and will drastically affect the statute the person is charged under and the kind of punishment a person gets.

So yes, I do see a difference between a trend and a pattern. If you don't, that's fine. We just differ on that judgment. Maybe that is because of what I do everyday in my studying, but that's who I am. I am writing from that point of view, not from the point of view of the 100 people on the street. If you don't accept this, you're not going to accept much of my argument and this is just a waste of time and effort.

As far as your simple question goes, the answer really does not matter. If Judge Alito ruled against criminal defendants in 100% of his cases, that alone DOES NOT MATTER. What matters is that he, as an appeals court judge, faithfully applied the precedent of the Supreme Court. That's it. You are focusing on the results. You should be focusing on the process.

As far as the exceptions to the 311 cases, e-mail Hewitt. He might have a list. I didn't do the interview. If you really care, do the research yourself. I don't care about those 311 cases enough to go through each one. First, I'm busy with exams right now. Second, it doesn't matter anyway. As I've said, it's about precedent and process. The exceptions are just easy way to show that Henderson might not being telling his readers the whole story.

As far as this..."Pointing out that the article is imbalanced because it fails to consider a judge's obligation to follow precedent is a perfectly fair concern, but that's not what you did. You called the writer a liar." Yeah, I did call him a liar. Omitting a crucial fact like that is a lie. Under the ethical rules for lawyers, if you fail to disclose an important fact to the court, that is considered lying. Henderson's article is very similar. He and Mintz are only presenting some of the story. The general public does not understand the legal system, especially not the federal appeals courts. If they don't point out the importance of precedent for appeals judges, they are lying through ommission.

"Incidentally, in making this argument you are implicitly suggesting that any judges who disagreed with Judge Alito in these cases weren't following SCOTUS precedent, and were therefore derelict in their duties, willfully legislating from the bench, or both. Would you care to comment on that?"

I am not making that suggestion at all. That's not how the law works. That's not how judges do their jobs. Judges can faithfully apply precedent while reasonably disagreeing on an area of ambiguity. Look at Casey. I agreed with Judge Alito's decision and think that he faithfully applied the Court's abortion precedent. However, I also think that the majority opinion was based on a faithful attempt to apply the precedent of the Supreme Court. Judges are not law robots; they are human beings. They are not going to be unanimous 100% of the time.

Again, it's the process, not the results. Sure, a result can be so far out of whack that it is a sign that the judge's process was flawed. But again, look at Casey. Four Supreme Court Justices agreed with Alito. Look at Alito's memo (which is also currently under attack) in the case that became Tennessee v Garner. Three Supreme Court Justices agreed with him. This is a sign that Judge Alito's legal reasoning is sound. You may not like the results, but reasonable judges can disagree on an ambiguous area in the precedent.

As far as the "bad facts," the best lawyerly answer I can give you is "tough." You will never get a case that comes into your office that has all good facts. If you did, you would get summary judgment and have the whole issue wrapped up with a few hours of work. Part of being a lawyer is taking those bad facts, presenting them to the court, and making the best legal argument you can based on current case law and persuasive authority. A good lawyer will try to persuade the court that while the current reading of the law does not cover their client's specific case, a reasonable extension of the law should be made for the following reasons... That's what lawyers do.

I never said that it would be easy to win the case by following the suggestions that the court made. Don't put words in my mouth. I said "That's a clear message to her lawyer what he's got to overcome on remand to argue the claim properly and win. The 3rd Circuit is saying 'don't argue these points because they will get you nowhere.' How evil of Judges Alito, McKee, and Fullam! They're helping Goosby out and being explicit and clear about it."

Goosby has a tough case. The lawyer can't change those facts. Judge Alito can't change those facts. But she still gets another day in court, and she knows exactly what the problem areas in her case are. Having an appeals court spell out in great detail what you should not argue is a huge help. Her lawyer knows where to spend his time and energy. I think the lawyer is probably happier getting another shot at a difficult case than losing totally on appeal.

You ask..."do you honestly think you would have a realistic chance to win this case on remand?" As far as Judge Alito (the focus of the article) goes, it does not matter. Did Judge Alito and panel find in Goosby's favor here? Yes, the case (while a tough one) was remanded. That's an exception to Henderson's pattern right there. It's not Judge Alito's job to turn Goosby's case into a good one on remand. You're focusing on the results of the cases, not Judge Alito's legal reasoning process as a judge.

I could enlighten you about the results of Goosby, but the district court opinions are not on LexisNexis (or at least not on my version).

I just found something. The Senate Republican Conference has produced this: http://src.senate.gov/public/index.cfm?FuseAction=Articles.View&ContentRecord_id=2194&Issue_id=0&Senator_id=0&State_id=0&CFID=21901494&CFTOKEN=58335425
in response to the Knight Ridder article. It's full of case citations that you can look up. I'll even put a link to it in the original post.