Date: January 12, 2006
Senator: Witness - Kirsanow
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SPECTER: Thank you very much, Professor Gerhardt.
Our next witness is Commissioner Peter Kirsanow, with the U.S. Commission on Civil Rights, partner with the law firm of Benesch, Friedlander. He's also on the board of directors of the Center for New Black Leadership, on the advisory board of the National Center for Public Policy Research. His bachelor degree's from Cornell, a law degree from Cleveland State with honors. Commissioner Kirsanow has reviewed Judge Alito's civil rights record and will testify as to his conclusions in that area.
KIRSANOW: Thank you, Mr. Chairman, Senator Leahy, members of the committee.
The U.S. Commission on Civil Rights was established pursuant to the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for matters pertaining to discrimination or denials of equal protection.
And furtherance of clearinghouse responsibility, and with the help of my assistant, I've reviewed the civil rights cases in which Judge Alito has participated in the Third Circuit as well as his record as an advocate for the Supreme Court in the context of prevailing civil rights jurisprudence. Our examination reveals that Judge Alito's approach to civil rights is consistent with the generally accepted textual interpretation of the relevant constitutional and statutory provisions as well as governing precedent.
His civil rights opinions evince appreciable degrees of judicial precision, modesty, restraint and discipline. In short, his civil rights record is exemplary: legally sound, intellectually honest and with an appreciation and understanding for the historical bases under- girding our civil rights laws. Our examination also reveals that several aspects of Judge Alito's civil rights record have been mischaracterized, some of the criticisms misplaced. Just three brief examples:
First, some have contended that Judge Alito has a regressive or anti-civil-rights view of affirmative action, one that's to the right of Justice O'Connor. This contention is based on three affirmative- action cases in which Judge Alito participated (inaudible) while he was with the Solicitor-General's Office in the Reagan administration. These three cases are Wygant v. Jackson Board of Education, Sheet Metal Workers v. EEOC, and Firefighters v. the City of Cleveland, all of which involved expansive racial preferences as remedies for discrimination.
Notwithstanding the fact that positions espoused as an advocate are poor proxies for interpretive doctrine, there is nothing in the records to stress that Judge Alito would somehow restrict remedies currently available under United Steelworkers v. Weber or Johnson v. Transportation Agency any more than Justice O'Connor would. Judge Alito essentially argued that rigid quotas are unlawful and opposition to quotas and expansive racial preferences do not evince a hostility to affirmative action, let alone civil rights in general.
KIRSANOW: Second, some critics have said that Judge Alito's decision or dissent in Bray v. Marriott is evidence of his supposed tendency to impose quote "almost impossible evidentiary burdens on Title VII plaintiffs." But a review of Bray shows that Judge Alito's dissent actually steadfastly adheres to Third-Circuit precedent and carefully applies the law to the facts, whereas majority opinion seems to dilute the commonplace standard of proof in a Title VII case by reducing or converting the burden of production on the part of the defendant into a burden of proof.
The third contention, unsupported by our examination, is that Judge Alito's civil rights record is out of the mainstream. Judge Alito participated in 121 Third Circuit panels that decided cases that may be termed in the traditional sense civil rights cases. Now, one would expect that if someone were out of the mainstream that by definition, he would rarely agree with his colleagues on the Third Circuit and moreover, you'd expect that he would almost never agree with his Democratic colleagues and would vote overwhelmingly with his Republican colleagues.
But an examination of Judge Alito's extensive record on the Third Circuit shows that his co-panelists on civil rights cases actually agreed with his written opinions and votes 94 percent of the time, and that's whether or not these panelists were Republican or Democrat, and in fact, produced unanimous decisions 90 percent of the time. Moreover, judges appointed by Democratic presidents actually agreed with Judge Alito's civil rights positions at a slightly higher rate than his Republican colleagues, by a margin of 96 percent to 92 percent.
In fact, judges appointed by Democratic presidents Johnson, Carter and Clinton agreed with Judge Alito's civil rights position at the same or a slightly higher rate than judges appointed by President Reagan or either President Bush. Obviously, in order to thoroughly assess Judge Alito's civil rights cases, you have to look at the actual facts and applicable law in each case. But it cannot be credibly stated that Judge Alito is hostile to civil rights, out of the mainstream or extreme, without leveling the same charges against every other judge on the court, whether Republican or Democrat.
I respectfully submit that Judge Alito's 24-year record on matters pertaining to civil rights demonstrates a firm and unwavering commitment to equal protection under the law. And he has a comprehensive and precise understanding of our civil rights laws that will make him an outstanding addition to the Supreme Court.
Thank you, Mr. Chairman.
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