Kennedy Reaction on Daily Show

The Dailyshow made some hay out of Sen. TEd Kennedy making a sour face during the Alito Hearings.

What's Kennedy Reacting To?

Basically Kennedy was responding the Sen Sessions (R) countering Kennedy's claim that Judge Alito has never "voted in favor of a minority plaintiff". When I saw the video on the Daily Show, it just struck me as wrong - didn't make sense. There's something Kennedy knows that apparently Sessions doesn't - or won't admit. Well, I finally found it contained in the Senate Democrats Response

Today, Senator Sessions mischaracterized Judge Alito's record on racial discrimination: "Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination. I would point him to U.S. v. Kithcart. There you made it clear the Constitution does not allow police officers to racially profile black drivers. A police officer received a report that two black males in a black sports car had committed three robberies. Later, they pulled over a driver because was a black man in a black sports car.

You wrote that this violated the Fourth Amendment. You stated that the mere fact that Kithcart was black and the perpetrators had been described as two black males was plainly insufficient. And they also may want to look at your majority opinion in Brinson v. Vaughn, where you ruled that the Constitution does not allow prosecutors to exclude African-Americans from jurors."

Senator Sessions cherry-picked two cases that are not reflective of Judge Alito's overall record.
It is true that Judge Alito ruled for the defendant in Kithcart. However, Judge Alito did not reverse the defendant's' conviction but sent the case back to the trial court to give the government a second chance to prove that the stop and search were constitutional. When the case came back to Judge Alito on appeal, he upheld the search and affirmed the conviction.

So apparently Sen Sessions considers it a "favorable" result for the defendent when Alito decides to let the original trial judge make the same decision he previously made over again.. and then affirm him when he does?

In Brinson, Judge Alito ruled that a prosecutor improperly struck jurors for racial reasons. However, it is worth noting that this case was decided unanimously and the facts were egregious -- the prosecutor used 13 of 14 of his peremptory strikes to remove prospective black jurors, and the prosecutor had made a videotape advising other prosecutors how to strike blacks from jury pools. Unfortunately, Kitchart and Brinson do not resolve the very real concerns raised by his entire record.

In fact, in most cases, Judge Alito has taken positions undercutting the ability of criminal defendants to question the government's exclusion of racial minorities from juries and has narrowly construed the Fourth Amendment.

Jury Selection

In Riley v. Taylor, 277 F.3d 261 (3d Cir. 2001), Judge Alito, in his dissent from an en banc decision in a capital case, denigrated the defendant's use of statistical evidence regarding the exclusion of black jurors by comparing it to a statistical analysis of the disproportionate number of recent left-handed U.S. Presidents. The majority, which found that peremptory challenges had been used improperly against potential black jurors, criticized Judge Alito's analogy, writing, "To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants...."

In another decision involving peremptory strikes of jurors in a criminal case, Judge Alito rejected a challenge to the dismissal of five prospective jurors, three of whom were Hispanic, because they spoke Spanish. Writing for the panel and reversing the district court, Judge Alito took pains to ground his decision in the fact that the proper translation of recorded Spanish conversations was an issue in the case. Nonetheless, his reasoning would make it very easy to strike all Spanish-speaking jurors from any case with Spanish-speaking defendants where conversations in Spanish are at issue - apparently without any Equal Protection problem. Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994).

So clearly Kennedy was completely out-of-bounds to suggest that Alito's decisions have been biased against minorities. Urm, maybe not so much..

Vyan