Are We Getting Borked Again?

By Martin Garbus, Huffington Post. Posted January 12, 2006.

By most accounts, Robert Bork, Ronald Reagan's Supreme Court nominee, couldn't get past the Senate Judicial Committee to a full Senate vote because of his extreme conservative views. But Samuel Alito (and, for that matter, new Supreme Court Chief Justice John Roberts) arrive at the exact same case results, just with a little more nuance and a lot less bluster.

A painstaking view of Bork, Roberts and Alito (all three were at the founding of Federalist Society) and their cases show they all seek to expand presidential powers and minimize the restrictions of the Bill of Rights, extend state power at the expense of federal power and destroy the separation of church and state.

Roberts and Alito both articulated their views in Reagan's Justice Department. Bork was then Reagan's eminence grise and of course got the Supreme Court nomination.

All three have consistently been to the right of the court in these four areas. In several decisions, Kennedy and O'Connor, along with moderates, voted against the Roberts-Alito-Bork view of how democracy should run -- what the powers of our presidents should be and how voting rights cases should be decided. With Alito's appointment, these decisions will go the other way.

Roberts and Alito, like Bork, have great differences with the Rehnquist court. Bork claimed that it was too liberal a court, that it wrongfully expanded the Civil Rights law, that the Rehnquist court encouraged immorality and the breakdown of the family. Both Alito and Roberts are totally committed to the expansion of presidential powers. From Nixon to Reagan to Bush Sr., it has been a Republican hallmark. This president started to expand those powers even before Sept. 11. Rehnquist, now replaced by Roberts, did not always go along with Bush; he (of course) voted against the administration in the habeas corpus cases. Roberts and Alito go the other way.

There were two Borks -- the more scholarly one prior to the nomination and the embittered one after his confirmation failed. His cases were fact-based -- did not have polemics -- but reached radically conservative results.

Bork's decisions did not treat kindly dissidents, blacks, women, children, the aged, the disabled, environmentalists or people committed to the separation of church and state. But it was only later that we saw the deeply felt emotion that drove Bork's results.

The right has learned to let the legal rhetoric be different, pledge allegiance to precedent, not claim to be an originalist, avoid broad polemics, speak kindly of minorities -- but let the results be the same.

It is not that Alito is just another conservative judge. He is the most conservative judge of the 22 judges (12 sitting and 10 senior) on the Third Circuit Court of Appeals and among the most conservative of the 300 appellate judges in the United States.

Alito's muffled views on race and gender, two of the most important issues facing the country, are pernicious.

Alito does not attack women or African-Americans directly. He just refuses to believe their testimony.

Over the years, I have learned how important process and procedure is. It allows a justice, like Alito and Roberts, to totally undercut laws, to give flowery rhetoric in favor of broad statements favoring civil rights principles while denying those exact same rights on a wholesale basis. For example, by denying access to the courts, changing rules of evidence and choosing not to believe the victims, they take away any power of anti-discrimination laws to protect African-Americans, women, the disabled or aged.

Sound bites on cases are not enough. Too many cases get overlooked, and those that do not are often misreported. A bit more detail than the media can give us is required.

Let's look at two of Alito's civil rights cases. In the first, the decision was 10-1. Alito was the one. It was the entire sitting bench of the Third Circuit voting against him. I have never seen so lopsided a vote. Conservative judges, as well as liberal judges, excoriated Alito.

In the first case, Barbara Sheridan, a head captain at the Hotel DuPont, said she was fired because she complained of sexual harassment. A jury agreed and awarded her substantial damages.

After Sheridan complained, the hotel started to keep meticulous records on her that were never kept on any other employee. They recorded, over a six-month period, every time she was a minute late, and they went to people she dealt with and recorded only her negative remarks.

Alito, in opposition to the ten judges, wanted to reverse the jury finding and dismiss her case -- he chose to accept the employer's version of the facts rather than the employee's -- attributing to Hotel DuPont reasons for firing her that were never told to her before she lost her job, but were offered as a rationale for the first time in court. Nonetheless, he praised the law she was suing under, noted it was a great advance and should be easily applied.

But Alito wanted to use Barbara Sheridan's case to do more. He wanted to change the burden of proof in civil rights discrimination cases -- make the employee prove racial, gender or age discrimination, rather than placing the burden on the company to prove they had a valid reason for firing her. That seemingly small procedural change would reverse the result in well over 90 percent of discrimination suits.

Martin Garbus is a partner in the law firm of Davis & Gilbert LLP.

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