Strengthening Constitutional Self-Government

No Left Turns

The Aftermath of Ricci

It is worth pausing to discuss the importance of the Supreme Court’s decision on Monday in Ricci, the New Haven firefighters’ case.

The case arose after New Haven, Connecticut spent over $100,000 developing a promotion exam for lieutenants and captains. They hired an outside firm to do so, and that firm took extensive steps to assure that the test was job related, and to assure that minority experts were overrepresented in the process at every step to assure that the test was not racially slanted. When the test results came out, however, the city determined, after substantial strong-arming by a former fire commissioner who had to step down after saying that new recruits would not be hired because "they just have too many vowels in their name[s]," that an insufficient number of minority candidates would be promoted, so they opted to throw out the test. Frank Ricci was among those who would have been promoted under the test. Ricci suffered from a learning disability, and therefore had to have the study materials read onto tapes for his review. This made his study process longer, and more costly than it was for other test-takers, but he succeeded.

What made this case somewhat peculiar is that the court of appeals panel that heard the case (on which Judge Sotomayor sat) failed to even address the merits of the case, affirming on the basis of the district court opinion. This is ordinarily reserved only for cases that are frivolous, or where the law is so settled that it is not worth the court addressing. The Supreme Court, which hears less than 80 of the 10,000 cases appealed to it every year, disagreed about the importance of the legal issues, and disagreed with the Second Circuit’s conclusion that overt discrimination could be justified in order to address potential disparate impact.

While the decision just addressed the statutory claims, it was nonetheless solid. The court recognized that there was no question but that New Haven discriminated based on race: "The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action." The Supreme Court that mere fear of disparate impact claims, absent substantial basis in evidence, was not a permissible justification.

What then is to be made of the case, and its impact on the Sotomayor confirmation hearings, which are scheduled to begin July 13? Let’s begin with the observation that Judge Sotomayor not only reached the wrong decision in this case, allowing overt racial discrimination in protection of what were essentially soft racial quotas, but she did so in a dismissive one-paragraph opinion which seemed calculated to bury the case from future review. Both her dismissive treatment of important rights in this and a prominent Second Amendment case, and the apparent bias that these cases display will likely be fertile ground for questions in her confirmation hearings.

In response to the Supreme Court’s opinion, defenders of Sotomayor have attempted to paint her opinion as one showing that she is not an activist. White House spokesman Robert Gibbs said: "Some of the very concerns that members of the Senate have expressed about judicial activism seem to be, at the very least, upside down in this case. Her ruling on the Second Circuit denotes that she’s a follower of precedent[.]"

The only problem is that it’s just not true. But you don’t need to take our word for it. Clinton appointee to the Second Circuit, Judge José Cabranes, expressed his deep concerns about the dismissive approach utilized by Sotomayor and her colleagues in this case. Far from following precedent, Cabranes, in stating why he thought the full Second Circuit should have reviewed the Sotomayor panel’s decision, stated that "[t]he questions raised in this appeal ... are indisputably complex and far from well-settled." (emphasis added). He noted that the case raised issues of "first impression"--that is, questions never decided before by the Second Circuit. So much for just following precedent.

Judge Cabranes added that Sotomayor’s panel’s "perfunctory disposition rests uneasily with the weighty issues presented by this appeal" and emphasized that in cases "[w]here significant questions of unsettled law are raised on appeal, however, a failure to address those questions--or even recognize their existence--should not be the approved modus operandi of the U.S. Court of Appeals." He concluded with what is perhaps the core of the indictment against Sotomayor’s handling of this case: "this Court has failed to grapple with the questions of exceptional importance raised in this appeal."

Regrettably, Sotomayor has demonstrated a pattern of failing to grapple with questions of exceptional importance. In her opinion in Maloney v. Cuomo, in which she found that the Second Amendment does not apply to the states, she tersely declared that a state statute restricting possession of weapons does implicate a fundamental right--the full consideration of which was measured in a handful of words. Like in the firefighters case, she concluded this without even grappling with the arguments–indeed without any explanation whatsoever.

This is all the more troubling because of her statements embracing personal bias. In the very same speech where she issued the well-calculated and well-quoted assertion about the superior judgment of wise Latina women, she questioned whether it is possible for judges to overcome personal sympathies or biases "in all or even in most cases." She even seemed to think that ruling based upon these biases is somehow patriotic: "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

Given these statements embracing bias, and her embarrassingly inadequate judicial treatment of both the firefighters case and the Second Amendment case, Senators taking up her nomination on July 13 will necessarily need to explore whether her short shrift treatment of serious statutory and constitutional issues in these cases is a reflection of her own biases, or whether, on the brighter side, it is simply an indication of incompetent judging.

Discussions - 14 Comments

Give a name of someone with a spine who will push either of these issues. Gun grabbing and race quotas, not exactly new news. It's horrible, but we have all heard it so much I don't think there is much of a chance either of these things makes a difference. That assumes the 40 minority senators don't share her views anyways. I'm sure talk radio will be all over this for a few days, but I doubt our honorable men in the senate are willing to dragged off kicking and screaming to stand up for our constitutional rights.

I think this case made it clear that the Deocratic party stands solidly behind racial quotas. Ginsbergs dissent called for exactly that, as did all the liberal commentary attacking the decision.

Of course Ginsberg is not likely to carry her ideas to their logical concluson and assert that the number of Jews on the SCOTUS and other elevated positions is too large. Logical consistency has never been a strong point for the left.

A party that didn't have the nerve to go after Ruth Bader Ginsburg, when it had the majority in the Senate, isn't likely to find the nerve to go after our "wise latina woman." But we'll see. She truly is as I described her the other day, a "radical with an attitude," and she's made that quite clear over the years, and some of her comments off the bench are just bizarre. Bizarre.

She's exactly the kind of activist Obama prefers, complete with an attitude.

She positively embarrassed herself in her opinion in Ricci, and were we not living in some alternative universe of political correctness, her nomination would be yanked.

There is another side to the issue of Sotomayor's confirmation that may benefit all of America. If inept, ideological, anti-American, kool-aid drinking justices are appointed and confirmed to the U.S. Supreme Court, the Court then becomes more and more useless and irrelevant - much like the Ninth District Court of Clowns. Many of the decisions in the years since the Warren Court, like Roe v Wade, were passed down on ideology and not on the Constitution's principals. At some point, the People will rebel and force changes to the Supreme Court - something that the Founding Fathers saw many years ago might happen if the Supreme Court become too idealogical and corrupted. The appointment of Sotomayor is strictly based on idealogy and politics. The kool-aid drinking Barack (Saul Alinsky) Obama has not a clue on how to interpret the Constitution. Fortunately, for him he did not have to pay for his Law Degree at Harvard - the taxpayers did. Sound familiar.

How is that a benifit? Clowns or not they are still in a position of power. This is a world were eccentric cartoon characters rule people with an iron fist so don't count on the absurdity of the whole thing lessening the authority they will have. I agree that the people should rebel, but they should have done it by now and every day that goes by it seems that the republic is more likely to go with a wimper than a bang. Or more likely, it will go with thunderous applause(only well written line in the new star wars trilogy). I doubt you are advocating getting out the pitchforks and even if you were that would only embolden and strengthen the tyrants. The first step towards rebellion has to be the passing of ron paul's bill to audit the federal reserve and bring some credibility back to our currency. All other issues can fall into place if that battle is won. The idea that there is a threshold, though, I am starting to doubt. On a fundamental level is Joe America really any different than the citizen in a country that fell to despotism while chearing in the streets? We used to think so, I still hope so.

I second John M's and Dan's good observations. Ricci v. New Haven is one of the moral touchstones of our age.

The Republicans really need to grill her on everything; not to keep her off the bench, but to highlight just how far out into left field she really is. If the Ricci ruling is any indication of how influencial she'll be on the bench then we really lucked out.

I agree that the Republicans need to grill her, but they should focus on issues like late-term abortion, the second amendment and the death penalty.

In response to Brutus: I speak nothing of pitchforks - just good ole American pressure - voting. One only has to follow the follies of Prop 8 in California. California is the only state to VOTE on Gay Marriage and ban it. All other states that have legalized gay marriage have done so via the COURTS. The underlying talk through the state of Califonria on the outcome of the lawsuit filed against Prop 8 after it passed was that if the California Supreme Court Clowns overturned it in favor of the gay community, then the people in California were going to remove them from the Court (legally). Their jobs become the issue, not gay marriage.

Yea, the whole "appointed for life" thing has to go. The courts are gradually destroying our country, and more generally the elite political class needs far more "churn." These jerks have forgotten about the little people who toil away to pay their inflated salaries.

Maria is pregnant, Rico is in jail, Juan is busy bringing snow from Columbia into L.A.
That means Jorge will get the job. He's been a good boy. Welcome to the wise Latina woman's logic, spawned in Latina culture where nepotism has been refined to an art form. White is associated with the Spaniards, and the Latinos are particularly loathe to miss a chance to screw them over.

Well, I agree that Sotomayor obviously was reaching in order to exercise her biased empanthy for the lower test score applicants. That bias should disqualify her for both the Sp. Ct. AND for her present job on an Appelate Court. She should be asked to resign or be impeached.

However, I find it even more troubling that she said in defense of her ruling that she regarded the opinions of lower courts to be controling law. As an Appellate Judge she should be looking to the US Sp. Ct. and to intent of Congress as expressed in the legislative record to find what law she should apply to the facts!

But, in saying all of that above, I must say that I've always understood that remedial laws are to be interpreted liberally and there can be no doubt that Congress regarded the law in question as a remedial law. So, at the end of the day, I'm not fully certain of exactly where a "line in the sand" should be drawn.

The difference between Ginsberg and Sotomayor is qualifications as a judge. Although I don't agree most of the time with Ginsbergs votes on the court, when she was nominated she was a highly respected judge. The Republicans did not want to "Bork" her and so went along with the Democrats since they felt that it was Clinton's right even though the disagreed with her politics. This time it is different. Sotomayor is neither well respected or qualified. She is just a hack for the extreme left wing.

I wholeheartedly agree with John M and Dan.

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