Irrelevant and less than truthful
Power Line
In his appearance of Meet the Press yesterday, Senator Schumer was less than truthful about Judge Altio. First, Schumer claimed that Alito has said the federal government cannot regulate machine guns. Actually, Alito said that the feds can regulate machine guns but must do so in a manner consistent with the Supreme Court's then-recent decision in US v. Lopez, in which the Court had struck down a nearly identical statute that regulated the intrastate possession of a firearm in a school zone.
Next, Schumer misrepresented Alito's dissent in the Groody case, claiming that Alito had written that "a 10-year old girl could be stripped searched even though the warrant did not call for her to be strip searched." But the issue in that case was whether the warrant authorized the search (specifically, whether the warrant incorporated the affidavit attached to it that had been submitted to the court). Alito thought that it did. He did not state that, if the search was not authorized by the warrant, it was still permissible. In any event, the issue in that case was whether police officers could be sued personally for the search. In that context, the question was not what the warrant actually authorized, but what the officer reasonably thought it authorized.
Schumer also said that Alito believes "the president has all the power," such that "you couldn't have an F.T.C. . . .you couldn't have a 9/11 commission [and] in a time of war, relevant to today, that you could have warrants issued so you could go into someone's home without going to a judge." But there is no evidence that Alito believes the president "has all the power" or that he supports any of these results.
With Schumer forced to misstate Alito's record so blatantly in order to make his case, the prospects for a succesful filibuster do not look good.
UPDATE: Senator Kennedy attempts a more rigorous approach to demonizing Judge Alito, relying on a study by law professor Cass Sunstein that purports to show that "the little guy" has trouble getting a "fair shake" from Judge Alito. But Byron York argues persuasively that
"even a cursory reading of the Sunstein letter suggests
that his analysis was so tentative, so filled with
caveats, and based so extensively on political
assumptions as to prove virtually nothing."
FURTHER UPDATE: Kennedy escalates his efforts to portray Judge Alito in a false light. He states that
<<< "Judge Alito Has Not Written One Single Opinion On The Merits In Favor Of A Person Of Color Alleging Race Discrimination On The Job: In 15 Years On The Bench, Not One." The key words are "written" and "on the merits." >>>
Appeals court judges are not often asked to decide the merits of discriminaion claims. That's for juries and/or district court judges. Most discrimination cases that reach the court of appeals do so on procedural or evidentiary issues. Moreover, appeals court cases are decided by panels usually consisting of three judges. So a typical judge writes only in about one out of every three cases.
Alito has voted to support the position of individuals claiming race discrimination on a number of occasions. And he wrote a dissent in Zubi V. AT&T Corp., 219 F.3d 220, 227 (3d Cir. 2000), which argued for a longer statute of limitations period in which to bring a race discrimination. The court didn't reached the merits, but had Alito's view prevailed, the race discrimination claim would have survived.
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