Posted on January 12, 2006

Anheuser-Busch v. Alito

Carl F. Horowitz, American Spectator Online, Jan. 12, 2006


MALDEF, as its name implies, files lawsuits — lots of them. And the last thing the group’s leaders want to see is someone sitting on the U.S. Supreme Court predisposed toward making deportations easier, striking down mandatory bilingual education, or preventing issuance of driver’s licenses as IDs to illegal immigrants — in other words, opposing the sorts of things MALDEF advocates.

In Judge Samuel A. Alito, now facing long-awaited Senate confirmation hearings, MALDEF has such an opponent. Alito, having served 15 years as a judge on the U.S. Court of Appeals, Third Circuit, has left a modest-sized paper trail suggesting as much.

MALDEF, let us understand, plays to win. And win it often does. Over the years the organization has filed successful suits to mandate affirmative-action hiring in Denver public schools, force employers to refrain from requiring Hispanic employees to speak English on the job, and require Virginia public colleges and universities to accept illegal immigrant students at in-state tuition.

Alito’s presence on the Supreme Court could derail some of these victories. Let’s take a brief look at his track record.

IN 1994, IN Tipu v. INS, two fellow Circuit judges threw out a deportation order against a Pakistani immigrant convicted on a drug conspiracy charge. The plaintiff, they reasoned, had played only a minor role in the crime, and had earned a high school diploma while serving a light prison sentence. Alito dissented, arguing the immigration review board did not act arbitrarily.

Another 1994 Third Circuit ruling, Pemberthy v. Beyer, particularly sticks in MALDEF’s craw. Judge Alito, writing for the majority, upheld the state prosecution’s peremptory challenges to five Spanish-speaking jurors. In that case, two men, Gabriel Pemberthy and Rigoberto Moncada, had been under investigation by New Jersey authorities for involvement in Colombian cocaine trafficking. They subsequently were convicted, and lost on appeal.

Pemberthy and Moncada then petitioned for a federal review, arguing that dismissing Latino jurors for being fluent in Spanish was tantamount to treating ethnicity as an illegal classification under the Equal Protection Clause. A U.S. District Court agreed, and overturned the decision.

Alito in turn voted to reverse that ruling. He understood that an ability to speak Spanish per se is no basis for exclusion. But this was an unusual case. Wiretapped evidence, in Spanish and of a highly cryptic nature, had been gathered by Spanish-speaking law enforcement officers. Alito believed that the stricken jurors, in this instance, could be prone to willfully misinterpreting tapes played back in court. As the prosecution had not violated the Equal Protection Clause, the appeals court restored the convictions.

The wording of Alito’s majority opinion made clear race was not at issue. He wrote: “A challenger’s decision to strike jurors based on language ability is subject to rational basis review if and only if the challenger’s concerns have to do with language rather than ethnicity. The dispositive question is the factual question of subjective intent.”

No matter — this decision, among others, has prompted MALDEF’s president and general counsel, Ann Marie Tallman, to denounce Alito’s nomination. His views, she states, reveal “a disturbing pattern of insensitivity toward Latinos’ lives and a pattern of legal opinions that would . . . dismantle fundamental constitutional protections currently enjoyed by Latinos and all Americans.” His opinions would “roll back the clock on civil rights protections available to Latinos.”

Her group accuses Alito of hostility toward immigrants. That’s an odd claim to direct at someone whose late father, Samuel Alito, Sr., was an Italian immigrant.

Let’s cut through the multicultural pieties. Judge Alito’s “insensitivity” is rooted in a sound belief that anyone who resides in America must do so legally, that an ability to speak English is essential to a person’s daily functioning here.