Date: January 12, 2006
Senator: Kennedy
Topic:
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SPECTER: Thank you very much, Senator Kyl.
Senator Kennedy?
KENNEDY: Thank you, Mr. Chairman.
I was reminded of an extraordinary observation the other day, and that was that Robert Bork and Ruth Bader Ginsburg agreed 91 percent of time. It was the 9 percent when they differed, which was the major differences. That's something that I think sometimes we lose track of here when we're looking at overall statistics, overall figures. It's the dissents. And it is the close dissents, as the Professor Liu has pointed out, that really indicate on these enormously sensitive issues involving race, involving the disabled, involving women, that so much of a judge's philosophy comes out.
I'm interested in, professor, just if you'd talk a little bit about the jury selection cases. We've considered the two that Judge Alito was most involved in. One, which is pretty boilerplate and understand the Brinson v. Vaughn case and then the dramatic Riley v. Taylor case, which is just extraordinary and I think enormously distressful to many. I'd be interested if you would just talk about both and give us your assessment.
LIU: Sure. Well, Riley v. Taylor has been discussed in these hearings. That was a case that concerned a challenge to racial discrimination in jury selection in the Dover County Court. It was shown that over the course of four murder trials within the same year, including the defendants in the case, the prosecution had struck every black potential juror to serve on a murder -- on a capital jury.
And the case was originally decided, actually, with Judge Alito in the majority, but it was then embanked, and the Judge Sloviter ended up with the majority opinion, basically finding that this pattern, in addition to other evidence in the record, showed racial discrimination of the jury. Judge Alito dissented from that view and I think the sentence I think that is most disturbing is his comparison of that pattern to the right or left handedness of presidents. And he went further to say that absent a careful multiple regression analysis -- I can barely say it -- we can't infer from the statistical pattern any racial discrimination.
Now, when the Brinson v. Vaughn case came along three or four years later -- that was I believe a 2005 case in which there was a pattern of 13, I believe, out of 14 black jurors being struck. And Judge Alito wrote a unanimous opinion, finding rarely discrimination in that case. What is interesting about that case is that he relies on a prior case of the 3rd Circuit, called Holloway v. Horne (ph) which relies in turn on Riley v. Taylor.
KENNEDY: Could you just in the very short time, in looking through the cases on these dissents, in areas where Judge Alito took away the effect of a decision of a trial court to have a jury trial, the number of cases that he took away from the trial court and the number of cases that he took after there had been a jury trial on appeal where he ruled against the individual on that, effectively overriding or overruling the trial court, number in both of those areas is some rather significant cases. We haven't got a lot of time here, but I think you get what I'm driving at in terms of the respect for the trial court and the jury verdict, whether you feel from your own kind of analysis the appropriate kind of respect and tradition for that.
LIU: Well, I think one area in which there is a -- to my mind at least -- a somewhat disconcerting pattern is in the Fourth Amendment context. You know, much has been said about, for example, the Doe v. Groody case. What I find puzzling about that case is, it is not that there is nothing to Judge Alito's position. I think if you read...
KENNEDY: This is the strip searching of the child.
LIU: His opinion actually is like all of his opinions, incredibly well-reasoned, very thoughtful, it is not at all disparaging to the girl or her mother who was found to be illegally searched. What is interesting to me is that in that case there is the availability of two competing interpretive principles. One is read the four corners of the warrant for what it says. The other is supplement the four corners of the warrant with underlying material that is questionable at least in terms of whether or not it is incorporated.
Given the important dignity at interests in Doe v. Groody, it just strikes me as puzzling, why he would have chosen the second interpretive device rather than the first; and the second one is the one that that took the case out of the jury's hands to determine whether or not the search was or was not reasonable.
KENNEDY: This is the one where Judge Chertoff took exception to Judge Alito.
Thank you very much. My time is up.
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