Much of this week has been taken up with the Alito confirmation hearings in the Senate. While I found most of it not terribly illuminating, one exchange has stuck with me. It was a relatively brief exchange between Judge Alito and Senator Joseph Biden (D) from Delaware in which Senator Biden stated he was perplexed by a decision made by the Judge. In Biden’s view it reflected a divide between himself and Alito. Biden lamented that the decision was one in a long string of decisions that gave the strong impression that Judge Alito tended to lean in favor of employers in litigation brought by employees. Biden made it clear that he felt that judges should be biased in favor of the litigants in such cases, that is the employees.
Alito’s answer was a good one. He observed that judges should not be biased in favor of either. They should rule on the law and the merits of the case. As Judge Roberts before him observed, “sometimes the law favors the poor man, sometimes it favors the rich man,” the judge is to let the law decide.
In fact, Alito was being kind to Senator Biden. He might more easily have observed that the burden of proof falls on those bringing the case before the court. Employers, who are defendants, are assumed innocent in our system of jurisprudence, and with good reason. Indeed, the court should lean in favor of employers by requiring that the burden of proof lie with employees bringing cases against their bosses, no matter the nature (or social gravity) of the charge. Being an employer is not a crime, and it does not carry with it the loss of the presumption of innocence in court cases. Senator Biden appears to have forgotten this. Let us hope that the courts don’t.