Nominee's Civil Rights Judgments Scrutinized





Eight years ago, a trio of federal appellate judges heard the case of Beryl Bray, a housekeeping manager at a Marriott hotel in Park Ridge, N.J., who alleged that she was denied a promotion because she was black. Two of the judges concluded that Bray had shown a lower court enough evidence of discrimination that she deserved a jury trial.

But the third judge, Samuel A. Alito, disagreed, writing that the hotel had merely committed "minor inconsistencies" in its rules for filling jobs and that it would be wrong to allow "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."

Alito's dissent prompted a rebuke from his normally congenial colleagues. The federal law that bans employment discrimination, the other two judges wrote, "would be eviscerated" if courts followed Alito's logic.

Bray v. Marriott attracted scarcely any attention at the time. But now that Alito has been nominated to the Supreme Court, it is part of a group of cases -- spanning gender bias, sexual harassment, age discrimination and disability and voting rights -- that his critics say reflects a narrow reading of civil rights laws.

According to a preliminary review of legal databases by The Washington Post, Alito has during 15 years as a judge on the U.S. Circuit Court of Appeals for the Third Circuit helped to decide scores of cases that touched on civil rights -- a far larger body of such opinions than Chief Justice John G. Roberts Jr. had produced before President Bush chose him for the Supreme Court four months ago. Alito's lengthy record on rights is emerging as a significant cleavage point between his supporters on the right and detractors on the left, even before activists on both sides have completed poring over his opinions.

In civil rights cases, Alito has agreed with the court's majority most of the time, The Post's review found. When he disagrees, he is not prone to inflammatory language or frontal challenges to Supreme Court precedent. Still, when he has taken a dissenting stance, Alito repeatedly has set a higher bar than his fellow judges for plaintiffs to prove that they were discriminated against -- and sometimes even to get a trial.



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