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October 31, 2005

Must We Turn This Blogosphere Into A House Of Lies?

Posted by Hubris

If you're gonna oppose Judge Alito, do it for the right reasons.

Think Progress has a handy Alito guide, featuring pithy headings such as "ALITO WOULD OVERTURN ROE V. WADE" and "ALITO WOULD ALLOW RACE-BASED DISCRIMINATION". Such themes are being embraced in unsurprising places.

Patterico has already done a great job of outlining the true nature and implications of Alito's dissent in Planned Parenthood v. Casey (which Think Progress wrongly construes as evidence that Judge Alito would overturn Roe); I thought I should touch upon Alito's dissent in Bray v. Marriott, which Think Progress offers as evidence that "Alito would allow race-based discrimination."

Think Progress relies on a section of the majority opinion in Bray that characterizes Alito's dissent. I'll quote it with additional context:

The dissent's position would immunize an employer from the reach of Title VII if the employer's belief that it had selected the "best" candidate, was the result of conscious racial bias. Thus, the issue here, is not merely whether Marriott was seeking the "best" candidate but whether a reasonable factfinder could conclude that Bray was not deemed the best because she is Black. Indeed, Title VII would be eviscerated if our analysis were to halt where the dissent suggests.

I don't think that is an accurate characterization of Alito's dissent; that is, while one can reasonably disagree with Alito's position, I don't think his opinion would have "immunized" employers in the general sense asserted by the majority.

The subject case involved the plaintiff asserting that she was not chosen for a promotion by her employer due to racial bias. The employer, Marriott, had been granted summary judgment by the district court, which ruled that the plaintiff had not met the requirements of either of the two prongs necessary to pursuing the case (only one prong must be met to pursue a "pretext" employment discrimination case). On appeal, the plaintiff argued that she had met one of the prongs; specifically, that she had produced evidence from which a reasonable factfinder could conclude that the defendant's proffered (legitimate and nondiscriminatory) justifications for their promotion decision were. not worthy of credence.

From Alito's dissent:

I will not test the reader's patience by describing the comparative evidence as to Bray's and Riehle's qualifications. I merely reiterate that while the evidence may not show that Riehle was clearly the superior candidate, as the district court thought, it shows that the candidates were approximately equal in qualifications. Reasonable people could probably differ on their thoughts as to which candidate was better qualified, but that is not the question. Instead the question in this prong one analysis is whether a reasonable factfinder could determine, based on the evidence, that Marriott could not have honestly thought that Riehle was better qualified. Given the subjective nature of many of the qualifications being considered and the amorphous nature of the question of what qualifications were needed to perform the specific job for which promotion was being sought, I do not see how a reasonable factfinder could find that Marriott did not honestly think Riehle to be better qualified. The inconsistencies and discrepancies that Bray identified were too minor and the qualifications of the candidates too similar for a reasonable factfinder to determine that Marriott was lying when it stated that Riehle was selected because Marriott believed she was more qualified. [emphasis mine]

Alito found that there were some discrepancies in the internal selection process for the promotion (e.g. Marriott did not notify Bray that she had been rejected prior to interviewing another candidate), but that there was not evidence that Marriott was lying about their assertion that they had selected the other (white) candidate because they felt she was the best-qualified candidate. Alito argued the following with respect to the majority opinion:

What we end up doing then is converting anti-discrimination law into a "conditions of employment" law, because we are allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly. This represents an unwarranted extension of the anti-discrimination laws.

As I understand it, Alito argued that a failure on the part of an employer to follow internal selection procedures to the letter was insufficient reason for a plaintiff to proceed with a discrimination case, when the plaintiff could not show that the employer was lying vis-a-vis its alleged nondiscriminatory reasons for selecting another candidate. He simply did not see the evidence in this case as sufficient for a reasonable factfinder to conclude that Marriott did not actually believe that the selected candidate was more qualified.

A reasonable person could disagree with Alito's position in Bray regarding what the plaintiff must show in order to defeat a summary judgment in favor of an employer in this specific type of discrimination case, but I do not see how a reasonable person could sum up his position as "Alito would allow race-based discrimination."

But maybe that's just me.

Posted by Hubris at October 31, 2005 11:33 AM | TrackBack (16)

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Comments

Yeah, it's just you. But you should be used to that by now.

Posted by: Boyd at October 31, 2005 03:10 PM

Good Post. Good Logic. Well Said.

Posted by: Chris at October 31, 2005 03:14 PM

Thanks Chris!

Boyd, are you trying to make me cry?

Posted by: Hubris at October 31, 2005 04:01 PM

Boyd does that.

Welcome back from the post-apocalyptic survival nightmare of Wilma's wake, Hubris.

Posted by: Bill from INDC at October 31, 2005 04:28 PM

I was all Road Warrior and shit by noon on the second day.

Posted by: Hubris at October 31, 2005 05:03 PM

C'mon, we all know how those on the far-left (especially those at DailyKos or DU) think, if it even part its hair to the right, they are instantly a fascist Nazi Halliburton stooge. No questions asked,and if you disagree then you are too.

Posted by: Dan S at October 31, 2005 05:10 PM

QandO's got a pretty good one on this subject:
http://www.qando.net/details.aspx?Entry=2836

To his discredit, though, John Henke is on the payroll of the Lockheedburton Christ, inc. So I'm not saying he's wrong, or that he's bribed, but he's definately bribed. And can you really trust that?

Posted by: Adam at October 31, 2005 06:52 PM

I have no opinion on this particular ruling or the law in question, but it is a good example of why I like Alito, so here goes.

The key thing to remember here is that Alito is not giving his opinion on the cases, he is telling his reading of the law. If the majority think the law is bad, they can simply change it (or add to title VII in this case).

What Alito is NOT doing is calling the law unconstitutional, making it almost impossible to circumvent his will/opinion on the matter, as super-majorities are hard to come by these days. He is upholding the law, whether it's a good law or a bad one, and forcing the legislative branch to fix it's own legislation, if the law is bad.

Enforcing a bad law is a better way to fix it than enforcing your own opinion on the matter, creating a 'judicial law'. Here is a judge I can love :)

Posted by: Kevin at October 31, 2005 08:47 PM

Someone else somewhere else made a good point...the opposing argument runs something along the lines of "a white guy may not be hired for any reason under the sun, but a minority person must be given a reason."

Posted by: ArizonaTeach at October 31, 2005 11:08 PM

Hubris, I owe you an apology. I didn't pay close enough attention to realize that you had posted this piece, not Bill (I do that waaaay too much).

One of my great pleasures in life is giving Bill grief (don't pity me, just accept me), and through my mistaken assumption that the author was Bill, I responded with text and tone intended for Bill.

But give me time. We get to know each other, I'll regularly disrespect you, too. ;)

Posted by: Boyd at October 31, 2005 11:59 PM

Actually, it's not that a reasonable person could disagree with Alito, it's that to pass the summary judgement threshold, a plaintiff has to show that reasonable people would not disagree on the inference of the evidence, i.e, no reasonable person could infer but one conclusion, otherwise, if a reasonable person could differ on the conclusion, it would go to the jury and no summary would obtain.
In Bray, Alito questions whether Bray has met the first prong of the Fuentes test, and reasons that plaintiff has not.
As Alito argues,"Fuentes explains that:
To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's reason was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence."
So the burden of proof has moved to defendant, but even there, given Rhiele's qualifications and the absence of discriminatory evidence by defendant, we have facts which could reasonably can be disputed, i.e., not inferred conclusively by the court, but rather, should go to the jury, pace summary judgement, especially since the reviewing court's position is to review the evidence in the light most favorable to the non-moving party.
But in any case, simplifying this into,"Alito would allow race-based discrimination" is simply idiotic knee-jerk reaction, and I would suggest, comes from someone who hasn't read the case.

Posted by: T. Marcell at November 1, 2005 02:55 AM

Boyd, no worries, I know Bill deserves it.

T. Marcell, I see what you're saying, I didn't mean to imply that I was applying the "reasonable person" standard to Alito's decision itself. Rather, I was saying that I could see how your average person could disagree with Alito's conclusions regarding whether the evidence showed that the plaintiff met the first prong, but that it is unreasonable to draw the conclusion that Alito was "allowing" race-based discrimination. I think our perspectives on the case are the same; I should have avoided generic use of "reasonable" in a legal discussion.

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