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The Alito Attack Machine

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ConfirmThem correctly notes one of the key “admissions against interest” made by Knight Ridder reporter Stephen Henderson in my interview with him yesterday, an interview I will replay on today’s program. (Transcript here, and earlier post here.)

The very idea that a 2,500 word article by two non-lawyers can in any way analyze the 15 year appellate career of Judge Alito is the first place for critics of this sort of agenda journalism to begin. Fair-minded editors –I know, I know, Diogenes alert– have got to push their “legal” reporters on sweeping assertions about Alito’s “philosophy.”

Henderson and I mixed it up on one line in his piece in particular:

Alito has been particularly rigid in employment discrimination cases.

The story goes on to state that Alito “has written in at least 18 discrimination cases and has sided with plaintiffs four times,” and that Alito’s “arguments have been convincing to his colleagues: Thirteen of his rulings were for the 3rd Circuit majority, meaning that at least one other judge on the court agreed with him.”

It is quite simply wrong to ignore cases in which Alito did not write but instead simply voted. It is also wrong to characterize Alito as “particularly rigid,” which is an editorial view dressed up as objective analysis. Knight Ridder should post all of these 18 cases as well as the various “categories” compiled by their reporters and let readers decide. There is considerable interest in their story, so follow up with a detailed defense of it.

This episode should caution editors that the battle over Judge Alito will see many pronouncements made that attempt to mischaracterize or slant the judge’s work. At a minimum, the Alito team at the White House should be asked for a response to such assertions before they appear in print unless they are clearly labeled as opinion.

But even more importantly, reporters have to know what they don’t know and can’t learn in a few weeks. Opining on Alito’s philosophy based on a few weeks of reading published opinions is pretty close to Holiday Inn commercial land, and it shows.

The Washington Prowler has more on the Knight Ridder piece, and on the attack campaign gearing up.

It is getting very ugly very fast, and MSM seems ready to join in the attempted Borking.

I hope the Alito team has designated experts on every set of opinions –by subject matter area– and that it doesn’t wait for the next hit piece to roll out before publishing a list of those experts for journalists to consult with as they prepare pieces. If the Knight Ridder piece is correct and there are 311 published opinions, you need no more than 30 competent lawyers with background in ConLaw to read up and be prepared to help reporters overwhelmed by the jargon. This Republican Conference memo is a start, (HT: Ed Whelan at BenchMemos) but it is a defensive piece, and the need is to influence with facts the next piece is already in the works somewhere.

Off to Colorado.


An e-mail with two great points:


Isn’t it hypocritical to say that Mr. Henderson’s political and moral
beliefs do not matter because he reports the facts. So convenient that he can “block” his bias, however, a judge with umpteen years of experience can’t block his!

Also, notice this statement from the transcript:

SH: It’s fair to say that the Baltimore Sun editorial page was anti-death penalty. When I worked there, I was the author of their editorial.

The MSM claim bias when Judge Alito wrote opinions for the Reagan White House, however, you can see SH takes the same position, The Balt. Sun made him do it. Also, why is it relevant, he “blocks” his bias and reports only FACTS. The amazing MSM, able to hide bias at will. Its impossible to see in their writings!?! NOT!

Its truly unbelievable to listen and read these people, you can’t make this stuff up!

Thanks again for your blog and radio show,


And a former Alito clerk weighs in here.


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