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Thursday, December 08, 2005 

Hewitt v Knight Ridder on Alito

This hit piece, smear job, hosing, whatever you wish to call it by Stephen Henderson and Howard Mintz of the Knight Ridder news service has gotten a lot of attention recently. Hugh Hewitt managed to get Stephen Henderson on his radio show and engaged in a masterful cross examination of this totally impartial, unbiased member of the media. On to the highlights!
HH: ...I want to play for you yesterday, Stephen Henderson, the interview you did on C-SPAN, because I've got two pull quotes from it, which I want to ask you about. Here's quote number one from C-SPAN.

"For example, we didn't find a single case in which Judge Alito sided with African-Americans, for example, alleging racial bias, which I think is, again, rather remarkable."

HH: Now Stephen Henderson, in your own article, you cite the case of Curtis Brinson, in which, it's in your own article.

SH: Right.

HH: So that was clearly a wrong statement, correct?

SH: No it wasn't a wrong statement. If you...well, first of all, that quote is taken out of context. If you play the segment right before it, what you'll see is that we were talking about employment discrimination. The host asked me about a segment of the story that discussed employment discrimination. And that's when I said oh, well by the way, he said what do you think about employment discrimination? So then I say, for example, we didn't find a case in which Judge Alito sided with an African-American. It's clearly in the context of employment discrimination that I made that statement.

HH: Okay. Well then, I'll go there. I pulled up from WestLaw...

SH: Yeah.

HH: Goosby V. Johnson and Johnson. A black female sued for discrimination, the district court granted summary judgment for her employer. Judge Alito was part of the panel that reversed, in part.

SH: Part of the panel that reversed...he's not in...he doesn't write.
That's what we would call impeachment through a prior inconsistent statement. That's also what we would call Henderson caught in a lie. He thought that people would just take him at his word and not look at the actual cases. Big mistake. Continuing on...
HH: You said you couldn't find a single case where he...in fact, let me play you the second part of your quote from yesterday.

"We found very few cases, maybe, I think, one or two, in which he sided with a woman in a gender bias case."

HH: Okay, so Goosby V. Johnson is a black female.

SH: Right.

HH: So he rules for an African-American, and he rules for a female.

SH: So you count that as a two-fer. Okay.

HH: No, I'm counting it as a refutation of both of your statements.

SH: Okay, but it's not a refutation. What did we say in the story? We said that all of these were trends, and that none of the trends was absolute, that there were exceptional cases in each one, and in fact, in our article, we go out of our way, in fact, to note the exceptions, because we thought the exceptions were important, that people would want to see in which cases was he violating a trend. Was he contradicting the trend?
The bold part is great. Henderson is presented with the facts inconsistent with his "findings" about Judge Alito's record, then tries to brush it off as a "two-fer." Then he gives some rambling explanation about how the trend he found is still intact. Sure, it's going to remain intact if you totally ignore the cases that don't fit your desired "trend." This is my favorite part...
HH: Steve, this is not fly by...by the way, we're both Wolverines. I teach Constitutional law when I'm not on the radio.

SH: Oh, you're kidding me. Oh...

HH: I graduated from the University of Michigan Law School, so I'm not going to get rolled on this one.
Henderson had no idea that Hewitt was a law professor. Amazing. He thought he was going on some right wing talking head's show and could confuse him with a bunch of legalese crap. No dice.

I wish I could say I am shocked by all of this, but I'm not. Later in the interview, Henderson tries to say that the Goosby v Johnson and Johnson case doesn't count because Judge Alito didn't write the opinion. Alito voted with the majority... and that doesn't count? That's incredible analysis. I know I'm only a year and a half into this law school thing, but I was under the impression that judges who vote with an opinion agree with it. That's sort of why they join it in the first place. But let's not let logic and facts get in the way of our hit pieces...

EDIT: Former Alito clerk and self-described "registered Democrat who supports progressive causes" Jeffery Wasserstein refutes the Knight Ridder article in this opinion piece. He cites an example...
Another example, which reached a result that would seem contrary to a conservative ideologue, was a case I worked on with Alito (U.S. vs. Kithcart) in which he reversed the conviction of a black male, holding that an all-points-bulletin for "two black men in a black sports car" was insufficient probable cause to arrest the driver of the car. Notwithstanding the driver's guilty plea, Alito reversed, finding that the initial arrest lacked probable cause, stating: "The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient."
He also points out the real important measuring stick for Judge Alito as an appeals court judge: did he follow precedent set by the Court...
Given Alito's respect for precedent and stare decisis as demonstrated by actually adhering to precedent for 15 years while on the court of appeals -- even in cases that reached results that would seem incorrect to a conservative -- and the open mind with which I saw him approach cases, labeling Alito an "ideologue" would be unfair and distorts his record on the bench.
It's pretty funny that he would be slammed for actually being consistent in his decisions. I guess some people want judges who are all over the place in their jurisprudence, following precedent when they want but ignoring it whenever they hell they want.

EDIT 2: The Senate Republican Conference has produced the following response to the article.

Well, OK, I'm not a lawyer, but I took the time to read the full 3rd Circuit decision in question. It is now clear to me that either you yourself didn't bother to do so before posting this entry, or you did, but are now making the very same bet about your readers that you impugn Henderson with making in your post. You know, thinking "that people would just take [you] at [your] word and not look at the actual cases."

For starters, consider the language of the K-R piece, which Prof. Hewitt used to motivate his "masterful" cross-examination of Mr. Henderson. (I spent half an hour looking for the transcript of the C-SPAN piece, but couldn't find it. However I am assuming that its substance is not wildly inconsistent with the written piece by Henderson and Mintz to which you linked.) The central thesis of the column is that Alito's record evinces a clear trend. To support this, the piece cites a number of specific decisions, but note that it carefully and conspicuously avoids absolute statements: "seldom sided with a criminal defendant"; "rarely supports individual rights claims"; "has seldom found merit in a bias claim"; "in most of the employment discrimination cases"; "often forcing them to prove that bias was the motivation"; and so on. This is in no way irresponsible or a smear, as you allege; rather, it is precisely how you support an assertion of a trend. Your characterization makes the column sound like an absolutist hatchet job. It is nothing of the sort.

More importantly, consider the Goosby decision itself. The appellate panel weighed four issues in their decision: (1) Was the district court's summary dismissal correct? (2) Did JJMI discriminate against Goosby by not allowing her to return to work in a limited capacity (which would have meant contravening its existing policy about the maximum allowable length of disability leave)? (3) Did JJMI discriminate against Goosby by permanently filling her position while she was on leave? (4) Did JJMI unlawfully retaliate against Goosby when she filed her EEOC complaint?

With regard to (1), the decision very specifically does not rule that Goosby's discrimination claim was correct. In fact, the opinion goes to some length to clarify that it is simply addressing an important procedural issue, namely that the district court was wrong to conclude that there was no question of material fact raised in the original complaint: "We are, of course, reviewing a grant of summary judgment, and we do not suggest that JJMI is guilty of race and/or gender discrimination, or that Goosby will ultimately be able to prove the discrimination she is alleging... Goosby's claim can not be decided as a matter of law."

As for the other three issues -- the ones dealing with the actual allegations of discrimination -- the court ruled emphatically against Goosby.

In substance, this decision clearly supports the thesis in Henderson's article, in spirit and very nearly in letter. Thus I can only conclude that Prof. Hewitt—and now you, through this off-the-mark post—appear to be willfully manipulating Henderson's assertions to say something they do not.


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.

looks like a cat fight might be developing at ED.

Thank you, thank you, I will be providing hte comic relief all week. Make sure you tip the waitstaff.

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.

Thank you for so vividly making my point for me.

You've just admitted that you consider the distinction between the words "trend" and "pattern" sufficient to justify calling the columnist a liar.

As I said in my first post, I'm not a lawyer, so I certainly allow for the possibility that these words might have a very specific meaning in a legal context that they do not have in everyday use. Also, English is not my native language, so it is entirely possible that I am missing some fine shade of meaning that differentiates the two.

In the real world, however, I submit that if you asked a hundred passerby, at random, to explain their understanding of the difference between these two words, very few would interpret them as having anywhere near the dramatic contrast that you claim. I suspect the vast majority would tell you that they are at least roughly synonymous, dictionary entries notwithstanding.

At most, this is a distinction of degree, not a difference in kind. To hang your characterization of Henderson as a liar on this point highlights just how facile your core argument really is.

To explore this a bit further, I pose the following simple question: Of the 311 published Alito opinions cited in the article, exactly how many ruled in favor of "a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or [a] consumer[s] suing big businesses"? How many ruled the other way? Of course, there is bound to be some subjectivity in deciding who "won" each of those cases, but surely the answer should give us some objective idea. If Henderson is wrong, this number should not be small. So, what is the number?

> 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.

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.

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?

And while you're at it, would you please cite, with specificity, at least a handful of decisions (there are over 300 to choose from, after all) in which Judge Alito's vote went against the above-mentioned criminal defendant/employee/foreign national/consumer as a result of a specific SCOTUS precedent? I'm not asking this to be a nag, but rather in hopes of learning about some specific counterexamples to Henderson's thesis, since according to what you wrote there should be plenty to choose from.

> ...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.

... except that spelling out what's "wrong" with this case is not the only thing it does. Since the paragraph you quoted cites specific factual events–which cannot be changed because they already occurred–in upholding the lower court's dismissal of the three issues of discrimination raised in the case, it seems to me that the likelihood of successfully reversing the substance of the initial verdict upon rehearing is virtually nil. That's what comes across loud and clear from reading the 3rd Circuit decision. Tell us: as a lawyer, who has just been told by the appellate court the numerous immutable factors it weighed against you (please re-read the exact bit from the decision you quoted above), do you honestly think you would have a realistic chance to win this case on remand?

In any case, there's an easy way to resolve this hypothetical. I notice that the Goosby case was remanded in September 2000. Surely if it were so easy to win the case–by simply following the suggestions laid out by the 3rd Circuit, as you claim–the case would have been decided by now? I don't have access to Pacer or FindLaw or anything similar, and I was unable to find anything by Googling publicly accessible sites. Perhaps you could enlighten us: unless this case is still winding its way through the courts, how was it resolved in the end?

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.

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