Liberal Ad Against Alito: True As Far As It Goes

Summary

A mostly liberal group’s ad says  Supreme Court nominee Samuel Alito made a ruling “to make it easier for corporations to discriminate” and also “voted to approve the strip search of a 10-year-old girl.”

As is often the case with 30-second ads, there’s more to it than that.

Alito did dissent from a 1997 ruling that allowed an African-American woman to sue Marriott Corp. for discrimination because a white woman got the supervisor’s job she wanted and thought she had been promised at a hotel in New Jersey. Alito agreed that the black woman may have been “treated unfairly” by her employer, but ruled that she had produced too little evidence of racial discrimination to allow her lawsuit to go forward. Marriott argued that the white woman whom they brought in for the job had more training, had worked at a larger hotel and had supervised higher-ranking employees.

Alito also objected to allowing a Pennsylvania couple to sue local police for strip-searching their daughter during a methamphetamine raid in 1998. Although no drugs were found in the raid, police argued that their warrant allowed them to search “all occupants” of the house. And while Alito said the warrant allowed the search, he made clear he disapproved the search on a personal level, expressing a “visceral dislike” for such intrusive methods.

The ad also notes, quite accurately, that as a government lawyer 20 years ago Alito wrote that the Constitution “does not protect the right to an abortion.”

Analysis

This ad was announced Nov. 17 by the Coalition for a Fair and Independent Judiciary, which consists of mostly liberal  groups including People for the American Way, the American Civil Liberties Union, the AFL-CIO, Moveon PAC, NARAL Pro-Choice America and others.

The group said the 30-second ad, “West Wing,” would run nationally on cable news channels and local stations in Maine and Rhode Island. The Coalition’s Web site, IndependentCourt.org , says these two states are targeted because they are “represented by senators expected to play key roles” in the confirmation process of Judge Alito. Those senators are Republicans Olympia Snowe and Susan Collins of Maine, and Republican Lincoln Chafee and Democrat Jack Reed of Rhode Island. The Coalition also says the ad will run in other states in the future.

Discrimination

The ad says that Alito ruled to “make it easier for corporations to discriminate” in Bray v. Marriott Hotels. In that case Beryl Bray, an African-American woman who was housekeeping manager at the Park Ridge Marriott in New Jersey, applied for an open position to be the hotel’s director of services –  a promotion. Bray argued that she had been told she was the top candidate for the job at a lunch meeting with one of the members of the panel reviewing her application. She testified that she also discussed what she would do in the new job after she was officially promoted. She said Marriott’s written policies required that after being informed that she was the top applicant, she should either be given the job or notified formally that she had been rejected.

Bray was not given the promotion, however, nor was she given formal notice that she was rejected. Instead, the review panel brought in a white woman, Therese Riehle, who was hired April 10, 1993. Riehle had been the Assistant Director of Services at the Marriott Marquis in New York, a larger hotel than the Park Ridge. Bray claimed she was denied the promotion because she was black and filed a lawsuit against Marriott for discrimination.

The district court threw out Bray’s lawsuit, granting summary judgment in Marriott’s favor on the basis that Bray had failed to produce the necessary evidence that racial discrimination was the reason she didn’t get the promotion. Bray appealed to the Third Circuit Court of Appeals, which heard the case Oct. 1, 1996 and ruled in Bray’s favor April 11, 1997 – sending her lawsuit back to district court where she and Marriott later settled on undisclosed terms.

Alito was the lone vote in Marriott’s favor. He conceded that Marriott had failed to follow its own rules, but said that was not enough to allow a claim of racial bias to go to trial:

Alito: This evidence does not show any more than the fact that Marriott did not comply with its internal rules by failing to inform Bray that she had been rejected before interviewing and hiring another candidate. The majority, however, sees this evidence as combining with other evidence from depositions to warrant reversal of the district court’s grant of summary judgment to Marriott.

Alito said the majority opinion weakened the burden of proof on Bray and other plaintiffs to the point where “all the plaintiff needs to do is to point to minor inconsistencies or discrepancies in terms of the employer’s failure to follow its own internal procedures in order to get to trial.” Alito would argue that he wasn’t making it easier for employers to discriminate, as the ad claims, but merely maintaining current standards of proof. However, his reasoning in this case comes down solidly on the side of the employer and against “disgruntled employees:”

Alito: I have no doubt that in the future we are going to get many more cases where an employer is choosing between competing candidates of roughly equal qualifications and the candidate who is not hired or promoted claims discrimination. I also have little doubt that most plaintiffs will be able to use the discovery process to find minor inconsistencies in terms of the employer’s having failed to follow its internal procedures to the letter. What we end up doing then is converting the anti-discrimination law into a ‘conditions of employment’ law, because we are allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly. This represents an unwarranted extension of the anti-discrimination laws.

Strip Search

The ad claims that Alito voted to “approve the strip search of a ten-year-old girl” in 1998. The case, Doe v. Groody, centered on whether a Pennsylvania couple had the right to sue local police officers who searched their home, themselves and their daughter for methamphetamines on the basis of a tip from an informant claiming to have bought drugs at the house. Officers of the Schuylkill County Drug Task Force obtained a search warrant that named only the husband (identified in court papers only as “John Doe,” not his real name). But they argued that a magistrate had approved the warrant based on a police officer’s affidavit that sought permission “to search all occupants of the residence and their belongings” (emphasis added.)

Officers entered the home and searched “John Doe,” his wife and their ten-year-old daughter Mary.  The strip search of the wife and daughter was conducted by a female officer, in private, in an upstairs bathroom. No contraband was found.

“John and Jane Doe” filed a civil suit in District Court against the officers for violation of their and their daughter’s Fourth Amendment rights. The officers moved for summary judgment arguing the searches fell within the scope of the search warrant and therefore they were covered by qualified immunity, which protects them from civil liability for actions performed during the execution of their duties.

The District Court denied the officer’s motion for summary judgment and the officers appealed.The case was heard by the Third Circuit Court of Appeals in September 2003. The Third Circuit upheld the District Court’s ruling – clearing the way for the lawsuit to go forward – with Alito filing a dissenting opinion.

The central issue was whether the police officer’s affidavit requesting the search warrant widened the parameters of the search beyond what was stated in the warrant itself. Here’s what it said:

Affidavit: This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your co-affiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.

The majority ruled that since only “John Doe” was named in the search warrant, and since the warrant makes no reference to the attached affidavit, the officers lacked probable cause to search the wife and daughter and therefore violated “their clearly established Fourth Amendment rights.”

Alito dissented, saying that a “commonsense and realistic” reading of the warrant gave the officers the impression that “all occupants” of the home were to be searched, and that they were acting within their professional duties in searching the wife and girl.

Although Alito said he thought the search was permissible, he made clear he would have preferred not to have it happen:

Alito: I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution.  I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face.

Constitution & Abortion

The ad quotes Alito as writing that “The Constitution does not protect the right to an abortion.” That is from a  1985 application he wrote for a position as a Deputy Assistant Attorney General in the Reagan administration, and is accurate:

Alito, 1985: I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.

It should be noted that Alito has attempted to distance himself from that 20-year-old memo since it became public. After Alito met with Democratic Sen. Diane Feinstein of California on Nov. 15, she said:

Feinstein: He said, ‘I was an advocate seeking a job, it was a political job and that was 1985. I’m now a judge … I’m not an advocate, I don’t give heed to my personal views, what I do is interpret the law.’

– by James Ficaro and Emi Kolawole

 

Media

Watch Coalition’s Ad: “West Wing”

 

Sources

Bray v. Marriott Hotels , 110 F. 3d. 986, 990 (3d Cir. 1997).

Doe v Groody, 361 F.3d 232 (3^rdCir. 2004).

“Alito Explains Abortion Statement,” CBS News/Associated Press, 15 Nov 2005.

“IndependentCourt.org Launches Alito Campaign with new Ad, Growing Grassroots Activism,”  Press Release , 17 Nov 2005.