Reversing Reverse Discrimination--Sotomayor Loses Another Round

Supreme Court nominee Sonia Sotomayor was just handed a reversal of her decision in the New Haven firefighters reverse discrimination case. Five of her potential brethren (and sistern?) on the high court decided that neutral testing requirements for promotion were not discriminatory merely because minorities, largely Black, did not score high enough for promotions.

In another 5-4 decision, the Supreme Court rejected Sotomayor's wit and wisdom in Ricci v DeStefano. The City of New Haven, Connecticut had established promotion examinations for its city firefighters which followed every rule mandated by state and federal authorities regarding racial and ethnic neutrality. In 2007, the examination was administered. Nineteen White firefighters and one Hispanic firefighter passed the test. None of the Black firefighters who took the test passed.

The city, fearing that it would be found in violation of some nebulous state or federal civil rights policy by granting the promotions to the successful firefighters and not to the unsuccessful ones, threw out the results. It had already been threatened with lawsuits by "civil rights activist" groups if the firefighters were promoted. Yet absolutely nobody was able to come up with a single shred of evidence that the test was in any way skewed by racial factors. They weren't objecting to the test--only to the results, which meant no Black firefighter would be promoted in this round.

When Bill Clinton nominated Lani Guinier as Assistant Attorney General for Civil Rights, it turned out that she supported "results oriented" litigation. That was enough to disqualify her, and after Clinton expressed the appropriate amount of fake surprise about the views of his former Yale colleague, Guinier withdrew her name from consideration. Somehow Clinton had failed to notice that her nickname was The Quota Queen. Sotomayor has expressed exactly the same views, but despite the racial barriers which have continued to fall since Guinier's nomination, Sotomayor's view of the law is now highly acceptable, even commendable, in President Obama's eyes. Fortunately, the Supreme Court did not agree.

The successful firefighter candidates sued the city for discrimination when they were denied their promotions. For those of you who have read my posts in the past, you know that I use the term "reverse discrimination" only when referring to what other people have said. There is no reverse discrimination--only discrimination, and it's vile in all its many forms. The firefighters' suit claimed that New Haven was discriminating against them by deciding that the tests were unfair solely because none of the Black candidates passed.

A federal judge, Janet Bond Arterton, granted summary judgment for the defendant City of New Haven. "Summary judgment" means that the court did not review the evidence and testimony, but simply decided that the suit was invalid on its face. She stated simply in her opinion that no racial discrimination had occurred because the city didn't promote anyone of any race.

The firefighters then appealed to the U. S. Court of Appeals for the Second Circuit. And there they ran afoul of "results-oriented" Sonia Sotomayor. In a one paragraph decision, Sotomayor praised the thorough, thoughtful and well-reasoned opinion of Arterton. Of course Arterton hadn't considered any of the evidence, and had ruled against the firefighters on grounds that had little or nothing to do with the pleadings and testimony. But these two wise ethnic female judges brought a perspective to the court that white males never could have. Hispanic male judge Jose Cabranes (batting .500 on the ethnic/sex scale) was not kind in his dissent to Sotomayor's opinion. He stated that the single-paragraph order issued by Sotomayor and the concurring judges ignored over 1800 pages of testimony and more than an hour of oral argument--ignoring the facts of the case entirely.

Cabranes went on to say "This per curiam opinion adopted in toto the reasoning of the District Court without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit." For those uninitiated in appellate law, that means that all the courts within the circuit were now expected to rule in accord with the Sotomayor decision without any guidance whatsoever as to what the legal reasoning was. In other words, Sotomayor has simply said, "here's the result you must reach, and let us worry about why you should reach that result.

Cabranes further said in his dissent that "The opinion failed to address the constitutional issues of the case, and the majority had ignored the facts of the case as well. And it did so in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case."

Interestingly, the Supreme Court justices were unanimous in agreement that the lower courts, including Sotomayor's, had failed entirely to consider whether there was a strong basis in evidence which would justify a departure from the race-neutral policies of the Constitution and applicable statutory and case law. Five of the justices determined that there was no such evidence to warrant a departure from standardized testing, and reversed Sotomayor's opinion.

Justice Kennedy, writing for the majority, said that regardless of the city's intentions, strong and compelling evidence indicated that it had made an illegal, race-based hiring decision. "In other words, there is no evidence--let alone the required strong basis in evidence [to throw out the tests]. No individual should face workplace discrimination based on race. As we have discussed at length [after reviewing the evidence that the lower courts failed to review], the process was open and fair."

Sotomayor and her mentor on the Supreme Court, Justice Ruth Bader Ginsburg, want results, not openness or fairness, or even good logic. For them, public safety is not an issue when racial goals are not being met, no matter how hard the city tried. In her dissent, Ginsburg reaches an absolutely bizarre conclusion in order to ignore the evidence, testimony and arguments in the case. She simply twists the evidence to state that "Under the Civil Rights Act of 1964--the law in question--employers commit discrimination if their actions are not necessary for business or there is another way to avoid a racially discriminatory result." Never mind that the evidence demonstrated that the "business" to be conducted was public safety, and that no evidence was produced of any kind which demonstrated that there was another way to accomplish the civil rights goal short of endangering public safety by promoting those unqualified to make command decisions.

Ordinarily, Ginsburg and Sotomayor favor the old burden of proof whereby employers, once charged with discrimination, must prove they did not discriminate. The current standard that they usually would oppose is that the charge is not enough, and the plaintiff must prove actual discrimination. And yet, even applying that rule, the firefighters did prove exactly that, and all the lower courts simply and summarily ignored all the evidence which supported their claim.

I'll let Justice Alito's concurring opinion state what this was really all about. "New Haven's discrimination against the White and Hispanic firefighters was a case of political correctness run amok and the lower courts' [all the lower courts'] refusal to look at the facts had denied them justice."

This case is important on two counts. First, it establishes once again that Sotomayor is not fit to sit on the nation's highest court. Even the liberal justices admonished her for failing to review the evidence before issuing a summary judgment. In addition, the case is important because it is final. That means the Supreme Court has determined that the courts below were so totally wrong that the high court had to repair all the damage, set the precedent, and not return the case to the courts below for any further deliberation. From here on out, the Sotomayors of the legal world will at least have to pretend to review the facts, evidence and testimony before coming up with decisions that ignore the Constitution and sound legal principles.