Alito on Business -- "Sensitivity" or Ideology?

Much has been written on Judge Alito's approach to issues involving business -- among them, commercial litigation, arbitration, contractual interpretation, and employment discrimination law.  A propos Judge Alito and Harriet Miers before him, Professor Ribstein wrote, "it’s important we get a judge who will decide business cases with some sensitivity to the value of free markets and the problems firms face from litigation and regulation."  He felt Judge Alito met that test.  The meme appears to have caught on, as today's LA Times features a story in which Ted Frank is quoted as saying, "You don't expect someone with a purely government background to have this sort of sensitivity in business cases. . . . I'm very encouraged."

I want to ask, whence the conclusion that Judge Alito is "sensitive" in business cases?  Believe it or not, and notwithstanding the provocative title of the post, this is not a rhetorical question.  First, other than believing the Democrats should not filibuster this nominee, and believing that he is "qualified" for the Court in a way that Ms. Miers was not, I don't know enough about him yet to state strong views about Judge Alito.  So I'm not opposed to his nomination and don't want to seem as if I am.  Second, I certainly don't know his business law decisions well enough to characterize them one way or another.  And third, I know that a single quote in an article doesn't necessarily give the flavor of the depth of the actual conversation with the reporter.  And I know that Ted does read our blog from time to time.  (Plus, we briefly trod the same halls at the same law firm, although we never worked together.)  So I'd actually be very curious to hear what folks have to say.

But can we agree at the outset that merely writing a series of strongly pro-business decisions (if this is an accurate characterization of Judge Alito's record; I can't say) is not particularly strong evidence of a "sensitivity" to the issues faced by business?  I tend to strongly favor a robust reading of the Free Exercise Clause, and if I were on a court, this view would likely manifest itself in my rulings on such claims.  But nothing in those bare facts would demonstrate my "sensitivity" to religion and religious issues; it would just demonstrate my general preference for religious claimants.  I could reach the same result whether or not I knew a blessed thing (so to speak) about religion and the conflicts faced by religious individuals and communities.  Indeed, if I were more "sensitive," I might pen a variety of rulings in which the religious claimant loses, but loses with dignity after a thoughtful discussion of the relevant issues.  Similarly, doesn't a strong free-market ideology get you to the same result -- a pro-business record of judicial rulings -- whether or not you are "sensitive" to the issues faced by business?

Ribstein fills out the picture by suggesting that part of this sensitivity has to do with a recognition of "the problems firms face from litigation and regulation."  And Frank, in the LA Times piece, voices support for a stringent employment discrimination opinion written by Alito because "[i]f an employee can pull an employer into court on a semblance of evidence, it can force a settlement. . . . Even if you win, you lose."  This strikes me as scarcely better evidence of any "sensitivity" to the problems faced by firms.  Again, a pro-market, anti-regulatory ideology buys you the same result whether or not you are genuinely sensitive to business issues.  Moreover, the relevant question in addressing employment discrimination cases is whether the law lets plaintiffs into court with "a semblance of evidence."  Certainly this is a settlement-forcing device, but so, potentially, is any legal right.  The question is, under what circumstances does a Title VII claimant survive pre-trial motions?  The fairness of "pull[ing] an employer into court" depends on the answer to that legal question, not on one's in/sensitivity to business.  (Parenthetically (literally), if my clerking experience taught me anything (and I am speaking here of circuit precedent, not of my own judge), it is that caseload and public policy preferences regularly seem to mangle the standard for summary judgment in employment discrimination cases, both at the trial court level and on appeal.) 

If I were writing opinions in these areas that were "sensitive" to business, I would fully acknowledge that employees may use Title VII to try to turn garden-variety dismissals, demotions, etc. into discrimination cases, in the hope that the corporate defendant will settle after protracted litigation, and that this may ultimately drive down the incentive to hire; that class actions similarly attempt to induce settlement and may discourage innovation; and that consumer arbitration clauses are one way to efficiently channel disputes without the significant burden of litigation.  But I might also "sensitively" acknowledge that proferring legitimate nondiscriminatory reasons is hardly the same thing as proving a dismissal was not, in fact, motivated by discrimination; that courts may be so tough on Title VII cases in part because they are caseload-driven; that businesses do in fact sometimes commit mass torts, and may even (at least until recently) collude in settlements that primarily serve the interests of the corporate defendant and plaintiffs' counsel; that businesses may prefer arbitration because they think it ups their chances of success, particularly before repeat-player arbitrators, and deters consumers from pursuing their claims; and that there may be something qualitatively different between a commercial business contract and a boilerplate arbitration clause in a consumer or employment agreement.  In short, I don't know at first blush whether the corporate interest would win or lose; but I would be "sensitive" about the issues faced by business.  So it doesn't seem to me that a pro-business record of judicial rulings really tells us anything about whether that judge is sensitive to business interests.  He may simply be insensitively supportive of them.

Again, this is not a loaded question.  I don't know the answer -- I'm just not satisfied that showing that someone is pro-business is the same thing as saying they're "business-sensitive."  Perhaps Ted or others can shed some light on ways in which Judge Alito's opinions in the business field have been not only pro-business, but nuanced in their understanding of the pluses and minuses of the interaction between law and firms.