One of the things any good lawyer knows – and Senate hearings are nothing if not an illustration of bad lawyering in action – is that you don’t make an argument or use a demonstration in court that can be cleanly and easily shown to be misleading or outright false. When something you’ve just used blows up in your face, you lose credibility in a big hurry.
So, assuming he even cares, Ted Kennedy couldn’t be feeling too good about Day One of the Alito hearings. Kennedy brought out a study purporting to show that Alito “was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.” As Byron York points out, Kennedy had to cherry-pick his sample very severely to reach this number, among other things focusing on just 45 dissenting opinions out of more than a thousand cases Alito has heard on the Third Circuit. (Leave aside the fact that the slant of Alito’s dissents may say more about his colleagues than him. In any event, a sampling of dissents is always going to provide a more extreme look at any judge, since it crystallizes the cases where judges disagree. That may help show that Alito is more conservative than the average Third Circuit judge – but it’s a long way from suggesting that he’s a rubber stamp for employers or won’t give litigants a fair shake where the law is in their favor).
If that wasn’t enough – and with Ted Kennedy, it’s never enough – Kennedy dragged out in his opening statement the claim that Judge “Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job,” a tortured case of Clintonian parsing that excluded cases in which Alito either (1) joined in opinions written by his colleagues or (2) ruled in favor of discrimination claimants on important procedural rulings (which can sometimes be more important than law made on the merits).
This time, it was too much, as Jeff Sessions cited back cases showing Alito ruling in favor of African-Americans. (More are listed here).
A lesson for courtroom lawyers: never say “never” unless you are sure it means “never” without strained caveats.