Monday, November 14, 2005

Scalito beyond the looking glass

The NY Times is maintaining the polite fiction that Alito's record on abortion rights is unclear. The paper's reporting so far has tended to make Alito appear more moderate than his record clearly shows he is, mainstreaming his extremism. So for example the Times argues, "...although groups on both sides of the issue expect Judge Alito to narrow abortion rights, his judicial record is hardly definitive."

This nonsense should be put to rest by a newly released document that provides clear proof of his categorical opposition to Roe v. Wade:
"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 a right to an abortion." Judge Alito 1985
The Republicans are nonetheless continuing to deny that this is in any evidence at all about how Alito might rule on Roe.

On the other hand, the NYT reports that a coalition of liberal groups is planning a series of ads highlighting his reactionary positions on a range of other issues:
  • an employer's right to fire someone because he had AIDS
  • the right of police to strip search a drug dealer's female companion and her 10 year old daughter
  • votes against employment discrimination suits
  • a vote partially overturning the Family and Medical Leave Act.
Brian Leiter provides another very disturbing report from Frank Menetrez, a lawyer who had dealings with Alito, on Alito's utter contempt for defendants' rights. The cases basically involved Alito denying the use of potentially exonerating evidence as the basis for an appeal because the evidence was not really newly discovered given the fact that the client must have known he was innocent. This Through the Looking Glass argumentation is based on the confusion of a piece of evidence with the fact which the evidence tends to prove (innocence).
In so doing, the court has made it impossible for a wrongly convicted criminal defendant to bring a new trial motion on the basis of newly discovered evidence. No evidence will ever constitute newly discovered evidence of a defendant's innocence, because the defendant must have been aware all along of his or her innocence. That is now the law in the Third Circuit.

Alito did not author United States v. Jasin. But Alito did sign on to it, despite the fact that the egregious technical error at its core was pointed out, in a very diplomatic manner, in a separate opinion by Judge Ambro. Alito's approval of this mangling of the law, at the severe expense of wrongly convicted criminal defendants, should, in my view, disqualify him from serving on the Supreme Court.
This lack of concern for a defendant's actual innocence echoes one of the most infamous opinions of his role model and current Supreme Court Justice Scalia:
This 1993 case (Herrera v. Collins) involved a dubious claim of actual innocence, unsupported by scientific evidence. Scalia, however, offered an opinion that went beyond the issues under review in Herrera v. Collins. He indicated that he would reject any claim of actual innocence, including the irrefutable proof sometimes provided by DNA evidence, as grounds for reopening a previously tried case. "There is no basis in text, tradition, or even in contemporary practice ... for finding in the Constitution a right to demand consideration of newly discovered evidence of innocence brought forward after conviction," said Scalia with Thomas' concurrence.
Howard Dean, the chairman of the Democratic Party, stated on Sunday that the Democrats are keeping the possibility of a filibuster open, despite earlier indications to the contrary from Democratic Senator Joe Biden and other "moderate" Democrats.

And for a good summary of the earlier evidence against him, see Doug Ireland's Alito the Hun.

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