RNC: Dean Leads Far-Left Attack on Judge Alito; Will Senate Democrats Follow?

8 January 2006

The Republican National Committee today released the following fact sheet, regarding Democratic National Committee Chairman Howard Dean's op-ed on Judge Samuel Alito:

"With his outrageous attack on Judge Alito, Chairman Dean once again demonstrates the wild-eyed bravado that makes him the Democrats' hatchet man-in-chief. The question for Senate Democrats and Democrats across the country is, will they stand behind their party leader or will they stand up for a remarkably qualified, fair and impartial judge who just received the American Bar Association's top rating." -- Brian Jones, communications director

THE FACTS ON DNC CHAIR HOWARD DEAN'S PITTSBURGH POST GAZETTE OP-ED

FACT: Judge Alito Has Been Praised By Democrats:

Sen. Frank Lautenberg (D-N.J.): "Sam Alito Is An Accomplished And Distinguished Lawyer." (Sen. Frank Lautenberg, Committee On The Judiciary, U.S. Senate, Hearing, 4/5/90)

Former Sen. Bill Bradley (D-N.J.): "For The Past 3 Years, (Alito) Has Served As U.S. Attorney For The District Of New Jersey, A Post He Has Filled With Distinction. This Should Come As No Surprise, Since That Has Been The Mark Of Both His Educational And Professional Careers." (Sen. Bill Bradley, Committee On The Judiciary, U.S. Senate, Hearing, 4/5/90)

-- Bradley: "(I) Am Pleased To Be Here Today To Back Him A Hundred Percent." (Sen. Bill Bradley, Committee On The Judiciary, U.S. Senate, Hearing, 4/5/90)

Sen. Ben Nelson (D-Neb.): "By All Accounts, Judge Alito Is A Nominee With Impeccable Judicial Credentials And Experience." (Sen. Ben Nelson, Op-Ed, "As Qualified Nominee For Court, Alito Deserves Up-Or-Down Vote," Omaha World-Herald, 11/13/05)

FACT: Judge Alito Decides Cases Based On The Facts, Not According To A Predetermined Outcome:

Former Clerk Katherine K. Huang: "I Think He Really Looks At The Facts Of The Case, He'd (Sic) Very Realistic ... He Doesn't Have His Head In The Clouds. He's Not Going To Be Carried Away By Some Legal Doctrine Or Some Arcane Grammatical Rule." (Sean Scully, "Bush's New Nominee: Not Always On The Same Page As Scalia," Time, 10/31/05)

Gary Rubman, Associate At Covington & Burling And Former Alito Law Clerk: "Judge Alito Is Not Someone With An Agenda. He Has A Case-By-Case Approach." (Tony Mauro, "Seeking A Degree Of Separation From Scalia," Legal Times, 11/7/05)

"In A Straightforward Application Of Precedent, Alito Concluded That Congress Did Not Validly Override The States' Eleventh Amendment Immunity When It Purported To Require States To Provide Twelve Weeks Of Leave To State Employees In Poor Health." (Edward Wheelan, Op-Ed, "The Right Justice," National Review, 12/5/05)

-- "Alito, Who Was Joined By U.S. Circuit Judge Theodore A. McKee And Visiting Senior U.S. District Judge John P. Fullam, Said The Decision Was In Line With Decisions From The 2nd And 11th Circuits That Also Found Congress Did Not Validly Abrogate The States' 11th Amendment Immunity When It Passed The FMLA." (Shannon P. Duffy, "State Employees Can't Sue Under FMLA," The Legal Intelligencer, 9/1/00; Chittister v. Dept. of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000))

FACT: Judge Alito Supports Individual Liberties:

Ronald Chen, Assistant Dean At Rutgers University School Of Law And Board Member Of The American Civil Liberties Union: "The President Made A Fine Nomination. I Certainly Would Not Argue Against Sam's Qualifications To Be On The Supreme Court." (Kate Coscarelli, "The Rise Of A Young Man Who Took A Shine To The Law," The (Newark) Star-Ledger, 11/1/05)

Judge Alito Has Emphasized In His Opinions That Trial Judges Must Pay Particular Attention To The Prosecutor's Motivation For Challenging A Juror.

-- In Pemberthy vs. Beyer, Judge Alito Specifically Emphasized That Trial Judges Should Carefully Assess A Prosecutor's Actual Motivation For Making Language-Based Challenges To Ensure That The Challenges Are Not Motivated By Concerns About Race Or Ethnicity: "It Would Be Utterly Unacceptable If Latinos Were Commonly Excluded From Juries Based On Pretextual Concerns About Translations." (Pemberthy vs. Beyer, 19 F.3d 857 (3d Cir. 1994))

-- Brinson vs. Vaughn, Involved A Black Defendant Who Was Convicted Of First-Degree Murder In Pennsylvania Court And Sentenced To Life In Prison. Judge Alito, Writing For The Court And Applying The Standards Set Forth By The Supreme Court In Batson, Held That The Evidence Showed That The Prosecutor Had Used 13 Out Of 14 Peremptory Strikes Against Black Potential Jurors And That This Pattern Of Strikes Raised An Inference Of Discrimination. (Brinson vs. Vaughn, 398 F.3d 225 (3d Cir. 2005))

-- In Jones vs. Ryan, 987 F.2d 960 (3d Cir. 1993), A Black Defendant Was Convicted In Pennsylvania Court Of Robbery And Criminal Conspiracy After The Prosecutor Exercised Three Peremptory Challenges Against Black Potential Jurors, Thereby Eliminating All But One Black Potential Juror. Judge Alito Joined A Unanimous Opinion Holding That The Explanations Tendered By The Prosecutor For Excluding The Black Potential Jurors Were Pretextual Reasons For Challenges On The Basis Of Race, And Granting The Defendant Habeas Relief. (Jones vs. Ryan, 987 F.2d 960 (3d Cir. 1993))

FACT: Judge Alito Is An Open-Minded Jurist:

Jeffrey Wasserstein, Former Law Clerk To Judge Alito: "I Think That His Personal Biases, Personal Beliefs Are Irrelevant When He's Working On A Case." (CBS' "Evening News," 11/14/05)

Judge Edward R. Becker, Former Chief Judge Of The 3rd Circuit: "I Found Him To Be A Guy Who Approached Every Case With An Open Mind. I Never Found Him To Have An Agenda ... I Suppose The Best Example Of That Is In The Area Of Criminal Procedure. He Was A Former U.S. Attorney, But He Never Came To A Case With A Bias In Favor Of The Prosecution. If There Was An Error In The Trial, Or A Flawed Search, He Would Vote To Reverse." (David G. Savage and Henry Weinstein, "Nominee Has Some Unexpected Supporters," Los Angeles Times, 11/2/05)

Mark I. Levy, Washington Lawyer: "Sam Is Very Smart ... (H)e Is Open-Minded And Fair. And He Thinks About Cases As A Lawyer And A Judge. He Is Really Very Different From (Justice Antonin) Scalia. If He Is Going To Be Like Anyone On The Court Now, It Will Be John Roberts." (David G. Savage and Henry Weinstein, "Nominee Has Some Unexpected Supporters," Los Angeles Times, 11/2/05)

FACT: The Concerned Alumni Of Princeton (CAP) Was Not An "Ultraconservative" Group, Was Formed To Increase The Dialogue Between Princeton Alumni And The Administration On A Myriad Of Issues, And Embraced Diversity:

"CAP Will Strive To Fill An Obvious Void By Functioning As A Mature, Independent Agency Qualified To Evaluate The Directions Being Taken By Princeton University, To Provide Constructive Criticism Where Indicated, To Funnel To Appropriate Administrators Opinions And Suggestions Received From Individuals Or Groups, And To Keep The Alumni Informed And Up-To-Date Regarding Important Happenings On The Princeton Campus, Making Certain That Both Sides Of Controversial Matters Are Covered." (Asa S. Bushnell and Shelby Cullom Davis, CAP Co-Chairmen, Letter To Princeton Alumni, 10/9/72)

-- CAP's Prospect Magazine Praises Princeton's Diversity. "In The Course Of The Last Ten Years The Admissions Office Has Parlayed This Rich Applicant Pool Into A Newly Diverse Student Body. As Women, Blacks, And Hispanics Assume More Prominent Roles In The Nation's Elite, Princeton Will Maintain Its Place As A Training Ground For Leadership." ("Princeton University Today: A Positive Overview," Prospect, Spring 1978)

-- "As Undergraduates These Students Provide A New Dimension Of Diversity And A New Perspective On Social Issues." ("Princeton University Today: A Positive Overview," Prospect, Spring 1978)

-- "As Graduates They Open New Realms Of Alumni Achievement, Bringing The University's Influence Into New Spheres Within Society." ("Princeton University Today: A Positive Overview," Prospect, Spring 1978)

FACT: Judge Alito Violated No Rules Of Ethics By Not Recusing Himself From The Vanguard Case And Legal Ethics Experts Defended Alito's Decision Not To Recuse Himself:

"In His Letter To Judge Alito, Mr. Specter Had Noted That, Based On Submissions To The Judiciary Committee By Two Experts On Judicial Ethics, He Himself Had Concluded That Judge Alito Had Committed No Impropriety." (Michael McGough, "Alito Says He Never Ruled When He Should Have Recused Himself," Pittsburgh (PA) Post- Gazette, 11/11/05)

-- "The Chief Circuit Judge, Anthony J. Scirica ... (S)aid That He Did Not Believe Alito Needed To Disqualify Himself." (Michael Kranish, "Democrats Seek Answers From Alito On Vanguard Case," The Boston Globe, 11/9/05)

-- Professor Ronald D. Rotunda: "(Neither Federal Statutes, Nor Federal Rules, Nor The Model Code Of Judicial Conduct Of The American Bar Association Provide That A Judge Should Disqualify Himself In Any Case Involving A Mutual Fund Company (E.G., Vanguard, Fidelity, T. Rowe Price) Simply Because The Judge Owns Mutual Funds That The Company Manages And Holds In Trust For The Judge." (Ronald D. Rotunda, Professor Of Law George Mason University, Letter To Senator Arlen Specter, 11/4/05)

-- Professor Geoffrey C. Hazard, Jr.: "In My Opinion Judge Alito Handled It Quite Properly, In Correcting A Situation In Which He Can Be Said To Have Made A Mistake About Recusal." (Geoffrey C. Hazard, Jr., Professor Of Law University Of Pennsylvania, Letter To Senator Arlen Specter, 11/3/05)

-- Professor Thomas D. Morgan: "Recent Press Accounts Suggest That Some Believe It Was Improper For Judge Samuel Alito To Have Participated In A Case Called Monga vs. Ottenberg, Decided By A Panel Of The Third Circuit In 2002. In My Opinion, There Is No Basis For Suggesting His Action Was In Any Way Improper." (Thomas D. Morgan, Professor Of Law George Washington University, Letter To Senator Arlen Specter, 11/3/05)

-- Professors Steven Lubet And David McGowan: "Supreme Court Nominee Samuel A. Alito Jr. Did Not Play Fast And Loose With Judicial Ethics Rules In A 2002 Appeal Involving The Vanguard Mutual Fund Company, As Some Recent Reports Suggest." (Steven Lubet and David McGowan, Op-Ed, "Judicial Temperament," The (Baltimore, MD) Sun, 11/28/05)

FACT: Alito Received Highest Rating From ABA:

"Judge Samuel Alito ... Gained The American Bar Association's Highest Rating For A Supreme Court Nominee ... The 'Well Qualified' Rating -- The Highest -- Is The Same One That Alito Earned In 1990 When Bush's Father, George H.W. Bush, Nominated Him To The 3rd U.S. Circuit Court Of Appeals." (Jesse J. Holland, "Alito Receives 'Well Qualified' Rating From ABA," The Associated Press, 1/4/06)

In 2001, Sens. Chuck Schumer (D-N.Y.) and Pat Leahy (D-Vt.) Wrote A Letter To The President Referring To ABA Evaluations As: "The Gold Standard By Which Judicial Candidates Are Judged ..." (Ines Pinto Alicea, "MALDEF And HNBA: Eyeing Judicial Nominees," The Hispanic Outlook In Higher Education, 11/5/01)

"(Sen. Russ) Feingold (D-Wis.) Told The Bar Leaders, 'The ABA, With Its Extensive Contacts In The Legal Community All Across The Country, Is The Best Organization To Evaluate The Integrity, Professional Competence And Judicial Temperament Of Potential Nominees.'" (Rhonda McMillion, "A 48-Hour Day: Bar Leaders Lobby On Capitol Hill Regarding Key Justice System Issues," ABA Journal, 7/01)

FACT: Dean Defies Other Dems Who Ask For Withholding Judgment Until After Hearings:

Sen. Dick Durbin (D-Ill.): "Let's Give Judge Alito A Clean Start And Not Presume He Is The Right Person Or The Wrong Person Until We See The Evidence." (CBS' "Face the Nation," 11/6/05)

"(Senator Patrick) Leahy ((D-Vt.)) ... Said He's Urging Democrats To Withhold Judgment Until After The Hearings." (Evan Lehmann, "Sen. Leahy Meets Judge Alito," The Lowell (MA) Sun, 11/3/05)

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