Former Third Circuit Clerk Criticizes Alito
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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