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Former Third Circuit Clerk Criticizes Alito

By Jeralyn, Section Sam Alito
Posted on Wed Nov 30, 2005 at 12:11:27 PM EST
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We've all read the glowing recommendations of former law clerks of Judge Alito. Here's a non-glowing report from a former Third Circuit clerk who worked not for Alito, but for another judge.

From 1996 to 1997, I was privileged to clerk for a judge on the U.S. Court of Appeals for the Third Circuit. Over the course of that year, my judge sat on a number of cases with Judge Samuel A. Alito, Jr. One of these cases stands out in my memory and gives me pause when it comes to Judge Alito’s commitment to judicial restraint.

One of those cases involved the murder conviction of Clifford Smith. The clerk, Michael J. Zydney Mannheimer, who is now Assistant Professor of Law at Salmon P. Chase College of Law, Northern Kentucky University, relates events establishing Judge Alito's determination to uphold the conviction. He concludes with this important observation:

Judge Alito’s approach in Smith’s case exemplifies a judicial attitude unfortunately all too common in criminal appeals, in which the judge sees himself or herself, not as an impartial and detached arbiter, but as an adjunct of the prosecutor’s office, doing whatever is necessary to preserve convictions. Every litigant expects and deserves to be treated equally with his or her adversary in the eyes of the judges who hear the case. When a judge puts a thumb on the scale on the side of the prosecution in criminal cases, by weaving out of whole cloth arguments that the prosecution, by design or neglect, has not made, and by ferreting out facts in the record to support these arguments, it is a most virulent form of judicial activism. Such activism is no more acceptable than that represented by the anti-death penalty judge who takes up the task of poring through the record in a death penalty case to discern facts and formulate arguments helpful to the defendant, but which his own attorneys have not raised, in a desperate attempt to save his life.

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    Former Third Circuit Clerk Criticizes Alito | 6 comments (6 topical)
    Re: Former Third Circuit Clerk Criticizes Alito (none / 0) (#1)
    by Sailor on Sat Dec 17, 2005 at 01:06:33 PM EST
    I saw a similar thing happen. Once when I was in court and court had ended the judge came over to the prosecutor and told her how to resubmit a motion that he could uphold. TL, and other lawyers on this site, is this a correct procedure? I suspect more prosecutors than defense attorneys are appointed/elected judges. This seems to skew the 'law' to a gov't POV.

    Re: Former Third Circuit Clerk Criticizes Alito (none / 0) (#2)
    by MikeDitto on Sat Dec 17, 2005 at 01:06:33 PM EST
    Sailor I don't know what the statistics are. Of course one can become a judge without ever having been a criminal lawyer--there are all kinds of lawyers. And in some cases you don't even have to be a lawyer. An aunt of a friend of mine was a judge out in eastern Colorado for a zillion years, and she doesn't have a law degree--she's a school teacher by training. Even Federal court judges require no special qualifications according to the web site. Of course it's doubtful that the President would nominate a plumber to be a Federal judge (though maybe not completely?), and even less likely that the Senate would confirm such a nomination.

    Re: Former Third Circuit Clerk Criticizes Alito (none / 0) (#3)
    by Avedon on Sat Dec 17, 2005 at 01:06:33 PM EST
    Actually, if someone's life is on the line, I'd think a judge should be very, very careful to be sure, no matter what kind of arguments the defense was sharp enough to make. It's not a game, it's life or death.

    Re: Former Third Circuit Clerk Criticizes Alito (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:33 PM EST
    I thought the same thing about judges generally having been prosecutors at one point. However, some of the worst judges I see, believe it or not, used to be criminal defense attorneys and, much to my suprise, former public defenders. it blows me away to hear their responses to my arguments and know that they made similar arguments at some point in their careers. BTW, Colorado does allow for the appointment of lay judges. Especially in its more rural counties. They still have to make it past a judicial nomination board comprised of attorneys and non-attorneys. Practicing in front of a lay judge can be a real hoot. Frequently they misadvise defendants before representation begins. I look at the situation as an opportunity to sow the seeds of chaos and appeal.

    Re: Former Third Circuit Clerk Criticizes Alito (none / 0) (#5)
    by ltgesq on Sat Dec 17, 2005 at 01:06:33 PM EST
    This sort of thing happens on a regular basis. I believe i suggested that judge Alito might be one of these sort of judges, and I was slapped down. Well, now someone from the inside is saying the same thing. Here in Indiana, the governor has just appointed 6 new trial level judges to fill vacancies. Of the six, five were currently prosecuting attorneys. Unfortunately, Dan is exactly right, some of the absolutely worst judges i have ever seen were public defenders. I think it is the issue of being a lifetime political hack, that is the most important issue. My problem with the judge Thomas appointment was based on his being an apparacheck for the a particular political group, and i see alito in the same sense. Has he ever held a job that was not dependent on his political connections? If the answer is no, then he shouldn't be on the bench.

    Re: Former Third Circuit Clerk Criticizes Alito (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:33 PM EST
    Ltgesq, According to Alito's questonnaire, I don't think he has ever represented a private organization or individual (only Federal entities) and has never held a job as an attorney outside of the Federal government.

    Former Third Circuit Clerk Criticizes Alito | 6 comments (6 topical)