Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt
Alito Hearings Credibility Check: Senator Sessions
Today, Senator Sessions mischaracterized Judge Alito's record on racial discrimination: "Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination. I would point him to U.S. v. Kithcart. There you made it clear the Constitution does not allow police officers to racially profile black drivers. A police officer received a report that two black males in a black sports car had committed three robberies. Later, they pulled over a driver because was a black man in a black sports car.
You wrote that this violated the Fourth Amendment. You stated that the mere fact that Kithcart was black and the perpetrators had been described as two black males was plainly insufficient. And they also may want to look at your majority opinion in Brinson v. Vaughn, where you ruled that the Constitution does not allow prosecutors to exclude African-Americans from jurors."
Senator Sessions cherry-picked two cases that are not reflective of Judge Alito's overall record.
It is true that Judge Alito ruled for the defendant in Kithcart. However, Judge Alito did not reverse the defendant's' conviction but sent the case back to the trial court to give the government a second chance to prove that the stop and search were constitutional. When the case came back to Judge Alito on appeal, he upheld the search and affirmed the conviction.
In Brinson, Judge Alito ruled that a prosecutor improperly struck jurors for racial reasons. However, it is worth noting that this case was decided unanimously and the facts were egregious -- the prosecutor used 13 of 14 of his peremptory strikes to remove prospective black jurors, and the prosecutor had made a videotape advising other prosecutors how to strike blacks from jury pools. Unfortunately, Kitchart and Brinson do not resolve the very real concerns raised by his entire record.
In fact, in most cases, Judge Alito has taken positions undercutting the ability of criminal defendants to question the government's exclusion of racial minorities from juries and has narrowly construed the Fourth Amendment.
Jury Selection
In Riley v. Taylor, 277 F.3d 261 (3d Cir. 2001), Judge Alito, in his dissent from an en banc decision in a capital case, denigrated the defendant's use of statistical evidence regarding the exclusion of black jurors by comparing it to a statistical analysis of the disproportionate number of recent left-handed U.S. Presidents. The majority, which found that peremptory challenges had been used improperly against potential black jurors, criticized Judge Alito's analogy, writing, "To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants...."
In another decision involving peremptory strikes of jurors in a criminal case, Judge Alito rejected a challenge to the dismissal of five prospective jurors, three of whom were Hispanic, because they spoke Spanish. Writing for the panel and reversing the district court, Judge Alito took pains to ground his decision in the fact that the proper translation of recorded Spanish conversations was an issue in the case. Nonetheless, his reasoning would make it very easy to strike all Spanish-speaking jurors from any case with Spanish-speaking defendants where conversations in Spanish are at issue - apparently without any Equal Protection problem. Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994).
Fourth Amendment
In Doe v. Groody, Judge Alito dissented from an opinion written by then-Judge, now Homeland Security Secretary, Michael Chertoff holding that police violated the Fourth Amendment when they conducted a strip search of a mother and her 10-year-old daughter even though neither was a suspect, neither presented any risks, nor were they named in the search warrant. 361 F.3d 232 (3d Cir. 2004). Police had obtained a warrant to search John Doe - but when they arrived at his house, only Jane Doe and her 10-year-old daughter were home. Despite the fact that neither was mentioned in the warrant, police strip-searched Jane and her daughter.
Judge Chertoff wrote that "as the text of the Fourth Amendment itself denotes, a particular description is the touchstone of a warrant." That Amendment provides that warrants must include language "particularly describing the place to be searched, and the person or things to be seized." Judge Chertoff also noted that neither Jane Doe nor her daughter were considered to be concealing any weapons justifying even a quick "protective search."
In the majority opinion, from which Judge Alito dissented, Judge Chertoff noted: "This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police authorize warrants".
In Baker v. Monroe Township, Judge Alito again would have allowed an invasive search based on an overly expansive reading of a warrant. 50 F.3d 1186 (1995). Pursuant to a warrant which mentioned only the home of Ms. Baker's adult son, Judge Alito would have upheld the search of Mrs. Baker and her three teenaged children, none of whom were mentioned in the warrant, as they arrived at home. The search included threatening them with guns, handcuffing them, emptying Mrs. Baker's pocketbook onto the ground, and taking Mrs. Baker's 17-year old son into the house and searching him. Judge Alito dismissed the deficient warrant as merely poor draftsmanship. Judge Chertoff's comments about the Doe v. Groody case apply equally here.
Judge Alito wrote the majority opinion in United States v. Lee, where the Third Circuit upheld the FBI's warrantless video surveillance of the defendant's hotel room as permissible under the 4th Amendment. 359 F.3d 194 (3d Cir. 2004). Judge McKee issued a strong dissent from Judge Alito's decision, explaining that the FBI "had the ability to manipulate a video camera to see and hear practically everything [the defendant] did in the privacy of his hotel suite throughout the day and night. The limitations of that Orwellian capability were not subject to any court order. Rather, they were defined by the curiosity and scruples of a single agent. That is simply not adequate given the importance of Fourth Amendment guarantees." Id. at 214.