Unasked Question about Sam Alito

Did Alito's Italian-American background determine his vote in Ricci?

Published July 13, 2009 9:14PM (EDT)

(updated below)

At his Senate confirmation hearing, Sam Alito used his opening statement to emphasize how his experience as an Italian-American influences his judicial decision-making (video is here):

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country" . . . .

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Two weeks ago, Alito cast the deciding vote in Ricci v. DeStefano, an intensely contested affirmative action case.  He did so by ruling in favor of the Italian-American firefighters, finding that they were unlawfully discriminated against, even though the district court judge who heard all the evidence and the three-judge appellate panel ruled against them and dismissed their case.  Notably, the majority Supreme Court opinion Alito joined (.pdf) began by highlighting not the relevant legal doctrine, but rather, the emotional factors that made the Italian-American-plaintiffs empathetic.

Did Alito's Italian-American ethnic background cause him to cast his vote in favor of the Italian-American plaintiffs?  Has anyone raised that question?  Given that he himself said that he "do[es] take that into account" -- and given that Sonia Sotomayor spent 6 straight hours today being accused by GOP Senators and Fox News commentators of allowing her Puerto Rican heritage to lead her to discriminate against white litigants -- why isn't that question being asked about Alito's vote in Ricci?

Also: if empathy is irrelevant to judicial decision-making, why are GOP Senators calling Frank Ricci as a witness at this hearing?  Since he's obviously not there to testify about the strict legalistic doctrines governing his claims, but instead is only there to trumpet the facts that make him "sympathetic" so that people will emotionally react against Sotomayor's ruling (his dyslexia, the amount he spent on books and tutors, his hopes for a promotion), isn't everything he has to say totally irrelevant pursuant to the GOP's alleged judicial principles?


UPDATE:  I'll have running commentary on Twitter today on the Sotomayor hearing.  It can be followed and read here.  I'll likely post something more comprehensive here later today on this or another topic.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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