Wednesday, November 02, 2005

Judging Judges

In yesterday's tome on Judge Alito (on which no one commented, I assume because you didn't read it), I said "it’s more important to look at his attitude toward broader societal issues, not particular takes on special issues."

Cass Sunstein (my pick for ideal Supreme Court Justice) has an Op-Ed in the Post, in which he argues:

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. …

Many of Alito's dissents involve civil rights.
Statistician/lawyer Jim Greiner's article on how judges treat race is interesting in that regard. I'll quote at length.

Judge Alito & Statistics:
The facts of the specific case, which concerned the potential use of race in preemptory challenges in a death penalty trial, are less important than Judge Alito's approach to statistics and the burden of proof.

Schematically, the facts of the case follow this pattern: Party A has the burden of proof on an issue concerning race. Party A produces some numbers that look funny, meaning instinctively unlikely in a race-neutral world, but conducts no significance test or other formal statistical analysis. The opposing side, Party B, doesn't respond at all, or if it does respond, it simply points out that a million different factors could explain the funny-looking numbers. Party B does not attempt to show that such innocent factors actually do explain the observed numbers, just that they could, and that Party A has failed to eliminate all such alternative explanations.

Such cases occur over and over again in cases involving employment discrimination, housing discrimination, preemptory challenges, and racial profiling, just to name a few. When discussing them, judges inevitably lament the fact that one side or the other did not conduct a multiple regression analysis, as if that technique would provide all the answers (Judge Alito's Riley opinion is no exception here).

The point is, of course, that how a judge views such cases has almost nothing to do with the facts at bar and everything to do with a judge's priors on the role of race in modern society. For judges who believe that race has little relevance in the thought processes of modern decision makers (employers, landlords, prosecutors, cops), Party A in the above situation must eliminate all potential explanatory factors via (alas) multiple regression in order to meet its burden of production. For judges who believe that race still matters, Party B must respond in the above situation or lose the case. Judge Alito's Riley opinion demonstrates where he stands here.
Judge Alito ruled that no racial bias occurred, but was reversed en banc. The details are discussed in this Salon.com article.

It's not that he was necessarily wrong, it's how he approaches the question. Does he demand that women (yesterday) or racial minorities go out of their way to show that they've been discriminated against, or does he recognize that racial and sexual differences really do exist in the world, and it's his job as a judge to offer a level playing field. Greiner looks for a middle ground, and part of that is technical, applying more appropriate statistics. But part of it is attitude – how much of a burden rests on victims of discrimination to show that they were discriminated against.

Alito doesn't want to see discrimination, or worse, doesn't want to remedy it. This is a trend throughout his jurisprudence, and a disturbing one.

This isn't wild-eyed ranting, it's a clear pattern emerging from multiple independent examinations of his record, from multiple different starting points. When people come into his court with an inherent societal disadvantage, they tend to come out with that same disadvantage. That holds for race, it holds for gender. It holds for harassing language, which he held to be protected speech when directed at homosexuals.