Unasked Question about Sam Alito

Glenn Greenwald

Salon.com

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.

(Continued here.)