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 JosÃ© 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 argumentsâ€“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.