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Are We Getting Borked Again?

The differences between Robert Bork, John Roberts and Samuel Alito are differences of style, not substance.
 
 
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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.

The ten-member court would not go along with Alito's view of the facts or law; they found the hotel's testimony fraudulent, not worthy of belief, and unanimously said Alito's view of the law would make race, gender, disability or age anti-discrimination statutes meaningless. Judge Doris Sloviter, writing for the ten, all believed, as did the jury, the testimony given by a DuPont employee that, after Sheridan complained, the hotel said it would watch her like a "hawk" and a "dog," and that they did.

In a second case, Beryl Bray, an African-American Marriott employee, said she was denied promotion to director of services because of her race. The majority of the court denied the hotel's motion to dismiss the case, saying the case should be decided by a local jury. Alito, after waxing poetic about the value of the Civil Rights Act and our country's commitment to equality, decided her case should be dismissed because he did not believe her testimony.

The Marriott Hotel, defending its decision to give a white woman the job, like DuPont, gave reasons in court it did not give at the time the employee was passed over.

The majority of the court looked at the overall picture -- Bray, it said, had been promoted several times by Marriott, was a star and had done well at the interview.

Alito voted to dismiss Bray and chose to believe Marriott's argument that there was no interview, that her post-complaint record (which she said was fabricated) showed she should not have the job, even though Marriott hired an outsider, ignoring its practice of hiring from within, and even though Marriott admitted the reasons for firing her were very different than the ones they gave her.

Alito's decision, the majority said, "ignores the sad reality that racial animus" "warped" Marriott's testimony.

Alito, in case after case, in jury selections, in sentencing, in discrimination cases, does not see "conscious racial bias" or gender bias, whereas his ten colleagues do. It is impossible to look at abortion cases without seeing race and gender issues.

In both Barbara Sheridan's case and Beryl Bray's, there were two separate versions of what happened. The majority in both cases accept a jury's view -- Alito said no, I, a single appellate judge, will decide, and then decided against both women. He paid homage to precedent.

Too much reliance by the Senate and by the American people is based on the concept of what precedent is. Cases at the end of the day depend on the facts. Alito, like most other judges, selects the facts that determine the result. Precedent is no obstacle to getting the result you want.

This is Alito's (and Roberts's) consistent modus operandi. He picks the facts he likes, the facts he believes in, and even if the entire court disagrees, he writes long, cold decisions throwing victims out of court. But he does it -- more perniciously -- under the radar.

Bork expressly told us, as Roberts and Alito implicitly told us, that the Rehnquist court swung too far to the left, rejecting originalism in favor of judicial activism. Bork tells us, "Our country has radically been altered, step by step, by justices who are not following the law." A court observer, he said, "can hardly have foreseen that passionate intensity, uncoupled from morality would destroy the fabric of Western culture. The rough beast of decadence, a long time in gestation, having reached its maturity in the last three decades, now sends us slouching toward our new home, not Bethlehem but Gomorrah."

We are getting two new justices who agree with Bork. They will uphold Roe principles while upholding every state obstacle to abortion; they will uphold the right of privacy at the same time that they permit every invasion of it. Alito recently was overruled 5-4 (O'Connor in the majority) because the Supreme Court found in the 2005 Rompilla case, as he did not, that a conviction should be reversed when a defense laywer failed to properly defend his client. He recently said federal statutes could not stop the transfer of machine guns. Fortunately, he was alone in the minority and lost.

Bork, Roberts and Alito want to go back to the view of the court's Golden Age, before Brown v. Board of Education, before Roe v. Wade, before the Senate passed the Civil Rights Act, and before the Roosevelt-era court established minimum wages and maximum hours, and created agencies to regulate corporate America. Bork wants to go back to the "Constitution in Exile"; so do Roberts and Alito.

I hope the Senate inquiry of Alito will focus on his view of presidential powers, rather than privacy and Roe v. Wade. The question of presidential power is the single most important issue facing the country. The new justices will write on a relatively clean slate and can influence the country's course for decades.

When I talk to students, I tell them to avoid cliches like the plague. But Alito and Roberts are wolves in foxes' clothing.

Unfortunately, the Senate will pass the nominee unless there is a groundswell of opposition.

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