Wednesday, July 1, 2009

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.


USS Ben USN (Ret) said...

Outstanding post, Lawhawk!

Okay, I know that "reverse discrimination" is commonly used terminology now, but why? Isn't discrimination descrimination regardless of where it comes from, be it govt. or race or whatever?

USS Ben USN (Ret) said...

Then again, liberals aren't actually liberal, and progressives aren't actually progressive, so it's nothing new, but it still irks me. I get tired of redefining words or using different words to say the same thing. Even in a strictly race-based way (which is lefttist type PC thinking and inherently racist like affirmative action) it makes no sense, because then how would that explain what happened to the hispanic fireman? What are the standards for Asian, Eskimo, Pygmy, etc? What are their reverse discrimination races?

USS Ben USN (Ret) said...

BTW, that was rhetorical, since I know Lawhawk only used the terminolgy for convenience since all the news agencies are.

But if any leftists wanna give it a go I'm especially interested in the tortured (il)logic of why "reverse discrimination" (let alone how) is only a black > white thing.

Writer X said...

What was even more bizarre was the White House spin after the Supreme Court's decision. Gibbs said that it proved that Sotomayor was a fair judge. Huh?

Still, do you believe that Sotomayor will be confirmed?

AndrewPrice said...


Great discussion of the Ricci case. This again shows not only that Sotomayor's views are a mess, but that her reasoning and judicial ability are a mess as well.

I agree completely on the issue of "reverse discrimination" -- either it's discrimination or it's not. I understand the genesis of the term is that it derives from discrimination resulting from "positive discrimination", but that's just double speak.

The law needs to be color blind, and it should never be results oriented because results-oriented law is not equal or fair, and it's not law.

AndrewPrice said...

Writer X,

Not only do I not doubt that she will be confirmed, I suspect that she will be confirmed without a fight.

That will be a huge mistake by the Republicans. If they don't tear her apart, she will just disappear quietly onto the court. Anyone who thinks that her liberal record will keep her in the news simply doesn't understand that the perception of what kind of judge she is will be set at the hearing -- barring some sudden strange conversion.

For example, do you know that Ginsburg is considered by many to be one of the top 2-3 liberals of ALL TIME on the court? But nobody knows that because she was confirmed without a fight and, thus, she was prejudged as a non-controversial "moderate."

Alito is the same thing. Liberals hate Scalia, who had a rough confirmation, but don't mind Alito (who sailed through) even though Alito has actually been slightly to the right of Scalia.

Writer X said...

Andrew, I was afraid you'd say that. If the Republicans don't show backbone on the appointment of the most important people in the country, what good are they?

AndrewPrice said...

None Writer X, none.

I have been meaning to update people on the confirmation, but we've had so much else thrown at us at this point with the healthcare and cap and trade, that I haven't had the chance.

Hopefully, I will get the chance in the next week or two. I've got a whole bunch of Supreme Court information that might be useful.

Right now I'm trying to put something together for later tonight or tomorrow that helps everyone understand the whole Honduras thing and what this means for the Obama Doctrine -- which is now clear (that's a teaser. . .) :-)

patti said...

whoa, great post. and i had the same reaction as writer x to the wh's reaction after the ruling. i also agree with andrew that i think she'll be confirmed. we have lost our fricken way...

Writer X said...

Great! Glad to hear that. I've been trying to understand the whole Honduras situation, piecing together bits from various news sources, and still not completing getting what's happening down there. Thanks!! It'll be helpful to get your insight.

Writer X said...

P.S. "Sistern" sounds like a witches' coven.

Unknown said...

USS Ben: Sotomayor is in a bit of a pickle. The civil rights movement has always been about everybody. After forty years and trillions of dollars thrown into affirmative action and the "war on poverty," the same problem remains. With certain notable (and usually legitimate) exceptions, nearly all "civil rights" actions pit blacks against pretty much everyone else. The enmity between the black population and anyone who stands in the way of entitlement for issues long gone tends to create a split personality among minority "activists." Remember that one of the successful candidates in Ricci was Hispanic, and Sotomayor ignored even him.

Unknown said...

WriterX: Contrary to popular belief, crap actually does roll uphill. Sotomayor applauded and praised the opinion of the federal district court judge, despite its complete lack of any legal reasoning or constitutional justification. Sotomayor repeated precisely the same rookie mistakes, and Obama (via his mouthpiece Gibbs) praised her for her fairness in ignoring facts, law, evidence, testimony and precedent. 1984 has arrived, it's just a little late.

Unknown said...

Andrew (and WriterX): I am also absolutely certain Sotomayor will be confirmed. I'm not so sure there won't be a dustup at the hearings. Although it would be foolish of the Republicans to put on a full court press, since it's a battle they can't win (particularly now that the loathsome Al Franken will make the Senate nearly filibuster-proof), but they have a duty to let the American people know what an unprofessional, legally ignorant, race-conscious nominee Obama has chosen. It won't kill the nomination, but it can set the stage for the next, possibly successful, battle over a leftist, Constitution-shredding activist judge. The Ricci case should be held up for all to see at the hearings.

Unknown said...

Patti: The Republican party has lost its way, but conservatives haven't. Obama will have an easy time with Sotomayor, but it's only one battle in the war for America's heart and soul. As the conservative wing starts to get back on its feet after devastating losses, the nation is starting to see through the emperor's new clothes. Although Obama the rock star is still popular, his policies are quickly becoming unpopular, and when the kool-aid wears off, the centrist wing of the Democratic Party will also start to come to its senses. I predict the Democrats will lose their filibuster-proof stranglehold on the Senate in the next election.

Unknown said...

The Honduras debacle will be another hole in the Obama armor. I too am looking forward to Andrew's column on it. This is a perfect opportunity to question Obama's "selective strength" in foreign policy. Give 'em hell, Andrew.

WriterX: "Sistern" does sound a little like a coven, doesn't it? And Sotomayor is the head witch, with a capital B.

BevfromNYC said...

First of all the Repubs must demand more time for review. They were just handed 300 boxes of materials for review. Isn't the court now recessed until the first Monday in October anyway? The WH keeps saying they must have her seated by September.

The reason the ridiculous WH spin is they are banking on the general public never reading beyond that statement. The party hacks will continue to pound how great she is because she doesn't discriminate and she will become the "Anti-Bork". And yes, we need to "Bork" her right back. [Hey, I borked Bork the first time and I am ashamed that I did now, but I was young and stupid.

AndrewPrice said...

Bev, the treatment of Bork (and of Reagan) is what finally convinced me that the Democrats had lost their way and had decided to begin what the Clintons would later call the "politics of personal destruction."

But sadly, that is the way politics has become these days and the Republicans need to learn to play the same game.

And yes, you are right, there is no reason to rush this.

Unknown said...

Bev: I was still a moderate/liberal Democrat during the Bork hearing too. I thought (foolishly) that the fairness the Republicans showed in later hearings on Democrat nominees would teach the Democrats a little civilized behavior. Wrong. We need to go for the throat and rip out the jugular. Like the terrorists, the only thing the Democrats understand is raw power. The old question is "How does a 90 pound police dog subdue a 220 pound buffed-up criminal?" The answer is "all-out attack." Time to take the gloves off. Not only is politics not beanbag, it's not even a fair fight.

CrisD said...

Great recap of lack Sotomayor's low caliber.

We must fight this. It is a good forum to show leadership, even if we are doomed by the numbers game.

Joe (now unemployed) America is sick of quotas--it was a win in that dept. --big time.

Unknown said...

CrisD: If I could give credit to Obama for anything but leftist dishonesty, I might think there is method to his madness with Sotomayor. This appointment will make no difference in the make-up of the court, other than to replace a male with a female so Ginbsburg will have someone to go to the powder room with. So why not just throw a loser judge with a terrible record into the pot, then wait for the next appointment where he nominates a genuine candidate (a much more dangerous thing). He can say "I understand some of the criticism from the last hearings, so I am appointing a highly-respected member of the legal profession. My prediction (or at least my best guess) is that it will be Cass Sunstein of the University of Chicago Law School, an old colleague of Obama's. He has impeccable credentials, is very smart, and therefore very dangerous. He believes in judicial activism, but he won't make stupid statements that trap him, unlike Sotomayor.

CrisD said...

Thanks, Lawhawk,
ugh...wilderness does that thing you do with a straw....

Tennessee Jed said...

This is a very informative post. Your comment that Judge Sotomayor is not fit to sit on the bench makes me wonder if you might at some point give us your thoughts on the following:

Selection of Supreme Court Justices seems to have become a particularly partisan exercise in ideology. Sometimes we think what is happening today is "different" than the "old days" when in reality it has always been thus. To what extent do you think Supreme Court Justices historically have been chosen for ideology over legal expertise? Has the Supreme Court generally offered us the best? Do justices ever grow into the job? Just curious. Keep up the good work, this is great stuff!

Unknown said...

Tennessee: Good to see you. And that is a very astute question. I may do a full post on that issue some time in the future, but the basics are this. Picking judges solely on ideology is a very recent event. The President always had the opportunity to do so, but rarely did. Most commonly, the choice was someone from his own party, occasionally as a payoff. It was more political than ideological. although ideology was an inherent part of that. Mostly, the President nominated excellent or prominent lawyers or jurists, and the Congress confirmed so long as the nominee didn't have something major wrong with his legal credentials.

The American Bar Association until recently (historically) was a non-political body which vetted the nominee solely on his behavior and decisions, not on his politics or judicial philosophy. The recommendations ranged from "highly qualified" to "not qualified," and because of their neutrality politically, their recommendation was taken very seriously.

I would have to say the first true excercise in political partisanship was the Bork nomination. Although Bork was a strict constructionist, he was not political. The Democrats made the whole thing political. Thus, the expression "to Bork" means to attack a nominee not on his qualifications, but on his politics and judicial philosophy as demonstrated by his judicial track record. Later, they added asking specific hypothetical questions about a specific kind of case and expecting the nominee to state how he would decide it. That was a whole new creation of political partisanship. The test was no longer sound reasoning and validity of the legal and constitutional decision-making, but whether the judge "did the right thing."

Republicans have gone out of their way not to do this. For example, Ruth Bader Ginsburg was a former area chief for the ACLU, an activist in the NAACP and an outspoken ultra-liberal. But her judicial record was clean, and that satisfied the fairness element which had applied before Bork. So she was confirmed easily.

Democrats sense that as a weakness, and the ABA has become a highly-partisan left wing "social justice" advocate, ruining their former neutrality in determining the qualifications of a judge.

The Supreme Court has usually gotten the very good to the very best. There have been some notable exceptions. When asked what his biggest mistake in office was, Dwight Eisenhower answered "appointing Earl Warren to the Supreme Court." It was a traditional appointment even though Warren had no judicial experience. But he had plenty of legal experience both as governor of California and California attorney general. Bush I appointed Souter who had no judicial negatives, but not much of a track record either. He figured it was a safe non-political appointment. That did not turn out at all well for those who oppose judicial activism.

Republicans must reluctantly recognize that Democrats will continue to attack Republican nominees solely on their politics. I don't advocate returning the favor exactly, but when a nominee's politics, ideology and judicial philosophy are all of one piece (Sotomayor is a perfect example), then they must put up strong, principled opposition. It's one thing to be a liberal, quite another to advance leftist agendas by basing decisions solely on "perception" while ignoring the law, precedent and the Constitution.

Justices have grown into the job. Our first Chief Justice, John Marshall was a successful lawyer, legal scholar and a middling judge. He became a tower of legal reasoning and precedent in office. "Growing" in office over the past fifty years or so has meant appointing a judicial moderate with no discernible activist philosophy who, upon becoming a lifer, made a sharp left turn and started re-wording the Constitution or adding umbras, penumbras and emanations that nobody in all of legal history had ever seen before. They should have been judicial grownups before they were ever considered for the high court.

And that's the short version.

AndrewPrice said...


I would add a couple things to what Lawhawk said. On Bork, I was on the other side from Lawhawk at the time, so I was a little more incensed by what happened. To me, the term "Borking" goes well beyond just politics and includes things like -- going through his garbage and trying to find out if he had rented dirty videos. Remember, Ginsburg got shot down right after Bork because he had smoked dope once -- an issue quickly forgotten by the left when Clinton ran.

I would also add that in the past, they were far more likely to appoint pure politicians. Under Reagan, there was a determined shift toward finding people who had real judicial experience -- law professors, appellate judges, etc. So while the ideological fight has increased, the types of nominees have changed as well -- becoming more "judge-like."

Finally, I would advocate giving as good as you get and then some until the left stops using these tactics. Anything less encourages the left to keep using these tactics because they know that they can't get hurt by doing so.

Tennessee Jed said...

Thanks guys for the great answers to my questions. I'd be interested if you have opinions on Justice Lewis Powell, Jr. I have a cousin who clerked for him and is his biographer.

Unknown said...

Tennessee: Powell was one of my favorite justices. He was steady, and commonsensical. His opinions were always well-reasoned and steady. When he had to be the go-to guy when there was no agreement among the other eight justices, he would find the way to come up with a workable compromise that still stayed within the bounds of solid legal principles. Even though I hated the Bakke affirmative action decision, Powell made it workable and held the door open for future revisiting of the topic by writing a separate opinion which used the term "strict scrutiny." He was also instrumental in setting the final standard on obscenity by pushing the court into applying "community" standards which then gave the states some of their power back. All in all, a very fine and yeomanlike justice. Your cousin doesn't happen to be J. Harvie Wilkinson, does he?

Tennessee Jed said...

John C. Jeffries, Jr., a great guy. He did his undergrad at Yale and spent his career as a professor at University of Va. I always used to see his name in print getting quoted by the national news magazines when constitutional law questions would come up. The last time I remember seeing his name in such a story was during the 2000 election with all the speculation about a constitutional crisis. His Powell biography was published by Scribner & Sons back in the early 1990's

AndrewPrice said...

Jed, Overall, I have a positive opinion about Powell. He was a good justice, who generally provided clear opinions, and was considered to be thoughtful and polite.

He was, however, the swing vote on two decision that bother me. In Bakke, the Court had the chance to put an end to the race baiting that has plagued this country since the 1970s and make the country truly color blind. Instead, the majority held that while race could not be the majority factor in deciding whether or not to let an applicant into a public university, it could be considered as a factor.

To me, this was the moment the Court should have finally stepped up for equality and made us a post-racial society. Instead, it just encouraged race hustlers to lie about what made their decisions and to keep pushing. Until that changes, we will never move beyond these issues.

The libertarian in me also does not like the Bowers decision, which upheld the George law criminalizing gay sex. I do not like the gay lobby at all, but I also don't like the government creeping into the bedroom. (Bowers was overturned 17 years later Lawrence.)

Unknown said...

Tennessee: That was the other name (that I couldn't remember, but should have). Your cousin's biography was top-notch, and I've read several of his articles from the U. of Virginia Law Review. The other name I mentioned also clerked for Powell, and became a justice on the Fourth Circuit Court of Appeals.

Andrew: I too disliked the Bakke decision. But the deliberations that led to the decision were the reason I praise Powell for his abilities. He knew that his vote for an absolute ruling against affirmative action would throw the court into turmoil. By establishing the "strict scrutiny" test in his separate concurring opinion, he kept the door open for further review. Subsequent case law bore out his wisdom as the burden of proof constantly shifted to the position that a mere allegation of racial unfairness is no longer sufficient. If Justice O'Connor had been awake during the Gratz and Grutter cases, it would have been the final blow against affirmative action, but she went airy-fairy on us.

The Bowers decision was a victim of both its times and bad lawyering. I don't like the government in people's bedrooms either, but whether it's entirely wrong is another issue entirely. What if the defendant was having private sex with a minor? The problem in Bowers was that whether sodomy is an act amenable to legislation or not, the obvious argument was missed. There had not been a single case of heterosexual sodomy between adults prosecuted in Georgia in decades, but there were many cases involving homosexual sex. Unlike England, America had no long history of proscription of homosexual behavior, and had disparate impact and unequal protection of the law been argued, Powell would likely have gone the other direction on the decision. But nobody argued it, and being a believer in dealing only with the issues presented, Powell voted to uphold Georgia. A more activist judge might have simply argued the case that the lawyers failed to argue. In the Lawrence case, Texas had a sodomy law which applied only to homosexual behavior, and that gave the court the opportunity to take the current constitutional position that it could have taken in Bowers had any of the lawyers bothered to argue it.

Tennessee Jed said...

Hawk and Andrew - I can't thank the two of you enough for taking the time to respond on Justice Powell. It seemed like a logical question given the current discussion of Judge Sotomayor. Like both of you, I come down on the side of the law as "colorblind."

In my cousin's biography of Powell, he devotes an entire chapter to Bakke which I found fascinating. It interested me particularly that Justice Douglas supported the "color blind" theory in a memo written about DeFunis, a predecessor case to Baake that the court ducked.

I always felt my cousin's assessment of Powell vis a vis Baake was appropriately academic and objective. He certainly seems to agree with you Hawk; e.g. Powell's was an unlikely affirmative vote to racial preference. He felt it was socially necessary in the short run, but concerned that it could turn into institutionalizing a quota system that would be totally unacceptable.

Again, thanks for taking the time and have a happy independence day.

Unknown said...

Tennessee: DeFunis v Odegard and Bakke v Regents of the University of California (my alma mater) both occurred around the time I was in law school. I was one very confused law student. I actually didn't appreciate Justice Powell's decision at the time because I saw nothing wrong with judicial activism. As I finished law school, practiced, and ended up on the bench, I came more and more to understand just how carefully Powell had crafted his Bakke concurring opinion. By then I came to realize that the Supreme Court was just as quarrelsome as my colleagues, and that Powell was the adult who saw that compromise was necessary, but also that it was vital to leave a door open to ending affirmative action in the future.

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