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A Conservative View of Alito's Record on Race

ED GORDON, host:

This is NEWS & NOTES. This is Ed Gordon.

With less than a month before the nomination hearings for Judge Alito, some Washington observers are taking issue with the Congressional Black Caucus for lobbying senators to oppose the nomination. Columnist and radio talk show host Mychal Massie is a National Advisory Council member, of Project 21, a conservative advocacy organization involved in judicial issues. He joins us from Philadelphia today.

Good to have you with us.

Mr. MYCHAL MASSIE (Columnist): Good morning. How are you?

GORDON: Good, thank you. We just heard from Congressman Mel Watt, who suggested that it is not necessarily the conservative slant of Judge Alito that they're opposed to, but it is the unwavering conservative slant that they're concerned about. There will be those who say that that is fair game when talking about the nomination of a Supreme Court nominee.

Mr. MASSIE: Well, first of all, let me say that I, unfortunately, did not hear all of Representative Watt's interview. It seems there was some confusion as to when I was to be brought on pursuant to your staff. Having said that, it is not the overwhelming conservatism or lack thereof. What I did hear of--what I did hear the gentleman from North Carolina say, pursuant to Alito's--Samuel Alito's predilection, I believe he used, to aggressively oppose civil rights cases, is simply not true. And since I was not privy to the entire conversation, the entire interview, I don't know if he gave--if he cited examples in support of his positions.

But if you look at Judge Alito's 15-year record on the 3rd Circuit--if you look at the 129 cases that he heard, three judge panel cases that he heard involving civil rights, if you look at the 14 en banc cases or full court cases involving civil rights, that Judge Alito was a member to--was party to, then one must either consider his Democrat counterparts to be overly aggressively conservative with Judge Alito or consider that both the Democrats and the Republican jurists voted according to the facts of the case and came away with the--with a decision of--in many cases unanimous decisions that the rulings going toward the civil rights issue were indeed made properly. This is...

GORDON: But I'm sure, Mychal Massie, that you've had an opportunity to take a look at some of the decisions that Judge Alito has come down on in terms of the discrimination case. I'm sure you've read some of his judicial writings and some of the private memos that have been released that I think most in the civil rights community would put on the ledger side of, quote, "against" affirmative...

Mr. MASSIE: When we look at the cases with Judge Alito and you look at his record, whether you look at Zubi v. AT&T, whether you look at Basinger, when you look at his cases, when you look at the case--the history of any jurist, especially in the 3rd Circuit--and I use them because that is where Justice Alito is--Justice Alito is from--what you find is that the--Judge Alito consistently ruled according to the merits of the case with his counterparts, be they Republican or Democrat. And when you look at the fact that in the panels alone, Democrat-appointed judges in 20 cases, all 20 were unanimous, you look at the panels, one Republican, one Democrat, and--two Republicans and one Democrat appointed in 60 cases, 56 times they agree with Alito and disagree with him only four times. You look at--and not only that, if you find that the Democrat judges agreed with Justice Alito more often than his Republican counterparts did.

So if there is an aggressive predilection to keep blacks out of court or decide against them, then it would--you would think that Judge Alito would be more in lockstep with his Republican counterparts, and that was not the case. And I would like to just point toward one case, Jones v. Ryan. A black defendant was convicted in Pennsylvania for robbery and criminal conspiracy.

GORDON: All right, but let me ask you this before we let you go. We've got to get to our roundtable. What do you say to those who will suggest--you talk about the 3rd Circuit Court of Appeals--out of 15 years on that--that the judge ruled on, I believe it was, 18. He was the lone dissenter in favor of discrimination cases in 14 of them in Title VII cases.

Mr. MASSIE: Well, when you look at the--when you look again at the fact that--and this is what I said before. When you look at the fact, you have 129 Title VII cases, three judge panels, 14 full court--or 14 en banc cases, and you pull 18 out and say, `These are extreme,' well, I have difficulty with that because that is trying to make--that is trying to find something that represents something that may be anecdotal or may be out of context. What does one say about O.J. Simpson going free? I mean, what does one say about Michael Jackson going free? Obviously, there are going to be cases heard that people disagree with across the spectrum. What I said was--what I find with Congressional Black Caucus...

GORDON: Quickly for me.

Mr. MASSIE: What people, in general, be they white, black or whatever, there are going to be cases heard that people disagree with and, I think O.J. Simpson is a classic example of that. Michael Jackson, classic example of that.

GORDON: All right.

Mr. MASSIE: But what I would like to say before my time is up, where I find it--where...

GORDON: You got to do it quickly because you are at your time, Mr. Massie.

Mr. MASSIE: ...and the Congressional Black Caucus is more than within their right to oppose Judge Alito. But they oppose him for reasons that are not fair and are not true. Where the opposition should come into play is with the systematic extermination of the black unborn...

GORDON: All right.

Mr. MASSIE: ...where we see three out of five black pregnancies ending in abortion, where we see...

GORDON: All right, Mr. Massie, I'm going to have to stop you there because...

Mr. MASSIE: ...the 1973...

GORDON: ...we're moving into some areas that don't necessarily...

Mr. MASSIE: ...percent of black...

GORDON: ...have to do with the...

Mr. MASSIE: Well, those are things that I would say we need to address if we're going to agree with someone.

GORDON: All right. All right. Mychal Massie of the Project 21, a conservative advocacy organization, and he's also a talk show host and author. Thank you so much for joining us. Appreciate it.

Mr. MASSIE: It's been ...(unintelligible). Transcript provided by NPR, Copyright NPR.