Thursday, December 15, 2005


A while back I pointed out all the extra effort Judge Alito invested in finding an excuse to reject a death penalty appeal. His defenders argued that it wasn't really so much extra work and that he should be expected to do that work.

In a 2002 appeal of a sexual harassment suit brought by a man with an IQ of 75, Judge Alito argued (PDF) that:

Pirolli’s brief never asserts that his work environment was one that a reasonable, non-retarded person would find hostile or abusive.

Oh really? In a brief filed by the EEOC, Pirolli says that:

one day he was in the men's locker room changing clothes. At the time, Pirolli had a shirt and jacket on, but no pants. As Pirolli described it, when he bent over to get his clothes

"I seen Mike's [a co-worker's] penis . . . . Then he pulled his pants up just enough to cover it, then the lights went out. Sam [another co-worker] hold me with his arms, they tried to hold me down. . . . Ken [another co-worker] was there, he didn't do nothing, he was just watching."

Pirolli stated that "Gene," another co-worker had turned off the lights and was trying to close the door, but Pirolli stuck his foot in the door. Eventually Gene turned the lights back on. To Pirolli, he felt that his co-workers were "almost raping me." Pirolli stated that he told Selser about the incident, that Selser promised "to take care of it," but that Selser never took any action.

There was also evidence that another one of Pirolli's co-workers, Harley Strauss, "attempted to push a broom pole into [Pirolli's] behind as other staff watched." Pirolli was wearing work clothes at the time. There was evidence that at times when Pirolli would bend over, Sam would rub his penis against Pirolli's behind.
In footnote 9 of that brief, it is noted that "The district court acknowledged that Pirolli subjectively found the conduct abusive."
So Alito's concern seems to be that only a retarded person would find this behavior hostile or abusive.

I've said it before and I'll say it again "When people come into his court with an inherent societal disadvantage, they tend to come out with that same disadvantage."

That's not who belongs on the Supreme Court.