Strengthening Constitutional Self-Government

No Left Turns

The Embarrassment of Ricci

Will the Supreme Court’s ruling in the Ricci case have an impact on the Sotomayor nomination? Should it? At the very least, the Court showed contempt for Sotomayor’s ruling:


it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.

Given the large Democratic majority in the Senate, it is rather unlikely that Justice Sotomayor won’t soon appear on the Court. This ruling, however, could make for one or two interesting discussions when she arrives.

Discussions - 10 Comments

I don't agree with her ruling on this, but four of the judges on the supreme court did(including the one she is replacing). Just seems like it won't be much of an issue, especialy considering what the house cap and tr8tors did. Mabye her hearing will only be four minutes long and no one can know when it starts untill three minutes before it begins with questions only allowed to be submitted beforehand and then one will be read picked at 'random'.

Concerns for the prestige of the Circuit Court of Appeals and the Supreme Court used to figure prominently in any nomination to those courts. Someone who had been unaminously overruled in her proposed standard for review of a major case, which later received cert, would almost surely have been estopped from ever being considered for promotion within the federal court system. Even Justice Ginsburg felt obliged to very tenderly, yet quite clearly, write that her proposed standard was legally unacceptable. Now Justice Ginsburg knew that her observations would create some political problems for Sotomayor's ongoing nomination process, yet nonetheless Sotormayor's handling of the Ricci case was so appalling that it made Justice Ginsburg's observations necessary.

It's amazing to me to see the number of her former clerks who've anonymously commented that she doesn't have the temperament or the intellect for the Supreme Court. She clearly doesn't have the temperament, in as much as she's a radical with an attitude. But how she tried to handle the Ricci case was simply appalling. Republicans ought to try to fillibuster her nomination, since she had no business being nominated.

And Brutus, the four Justices you mentioned only failed to concur with the majority on the narrow issue of whether the case should be remanded to the District Court. But none of the Justices approved of Sotomayor's handling of the case, and none aggreed with her proposed standard of review, which effectively shifted the burden of proof and would have allowed the mere threat of a groundless accusation of racism to cloud the promotion prospects of any non-minority applicant. So despite the appearance of a narrow victory for Supreme Court "Conservatives," in reality Sotomayor was UNAMIMOUSLY overruled on a case that later received cert. It's a stunner, and in any normal time her nomination would be very delicately brought to an end.

But as scandalous as Sotomayor's nomination is, it pales when compared to the antics of the Ninth Circuit Court of Appeals.

It's as though she voted "present"--while the divided Supreme Court took sides.

I just read a blurb about the story, interesting. I still doubt that there are enough vertabrae left in the senate to form one spine to challenge the leader's nomination.

Dan: The Ninth District Court of Appeals is often referred to by west coast conservatives (the few of us that exist) as the Ninth District Court of Clowns.

" ... one or two interesting discussions after she arrives." How about "nine or ten heated discussions" in the Senate Judiciary Committee BEFORE she arrives?

1: Brutus, "four of the judges on the Supreme Court" are liberal WACKOS and judicial imperialists. So what if they agreed -- partly -- with Sotomayor? But (5) you're quite right that there isn't enough backbone in the Senate to stop this lunatic.

6 -- Cowgirl, may I recommend the following: "Ninth Circus" and "Nutty Ninth." With some exceptions. A few are good, but too damned many are bad.

I meant by 'so what' that the crooks in DC are not going to be outraged by this sort of thing because its institutionalized in the party sailing with the winds of political fortune right now. Its the left's turn to be the axe men I guess after DHS and PA.

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