The judge got ahead the old-fashioned way — so why does she pretend otherwise?
(Page 2 of 3)
Sotomayor’s role in the Second Circuit Court of Appeals decision in the New Haven case, reversed by the Supreme Court, was branded by six of her Second Circuit colleagues as judicially underhanded. Sotomayor was part of a three-judge panel on that court reviewing the appeal of the lower court opinion tossing the mostly white firefighters’ case out of court. The panel affirmed the lower court opinion but did so in one paragraph that merely adopted by reference the lower court’s 48-page opinion.
Courts of Appeal typically summarily affirm only in routine cases not involving novel or important issues. Such per curiam rulings signal to the Supreme Court that the appellate panel believes the lower court results are not worthy of further appellate review. It is highly unusual for such rulings to be issued in important cases such as the New Haven one.
The firefighters petitioned for a rehearing by all 13 judges in the Second Circuit. This en banc petition was denied by a margin of 7-6. The dissenting opinion noted the sleight of hand in the Second Circuit panel’s treatment of the case:
It is arguable that when an appeal raising novel questions of constitutional and statutory law is resolved by an opinion that tersely adopts the reasoning of a lower court—and does so without further legal analysis or even a full statement of the questions raised on appeal—those questions are insulated from further judicial review. It is arguable also that the decision of this Court to deny en banc review of this appeal supports that view. What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review.
Fortunately, the Supreme Court took the case and reversed the Sotomayor panel’s decision.
At her confirmation hearing on Tuesday, Sen. Herb Kohl (D-Wisc.) asked Sotomayor if she agreed with Justice O’Connor’s statement in the Michigan cases that affirmative action should be phased out. Sotomayor’s response was very troubling.
She said that the need for affirmative action is “always, first, a legislative determination.” She went on to state that the 14th Amendment to the U.S. Constitution guarantees equal protection to “all citizens.” This misstates the proper role of the U.S. Supreme Court. If, as Justice Scalia suggests, the Civil Rights Act is unconstitutional on equal protection grounds, then it is flatly illegal for a legislature to determine the need for affirmative action.
Even more troubling is her statement that “equality [under the 14th Amendment] requires effort” and sometimes racial preferences are needed to ensure equality. This is an activist judge’s misreading of the U.S. Constitution, which says all citizens should be treated equally, not that some citizens must get preferences on racial grounds in order to be equal.
As noted, this equal protection issue was raised by the New Haven firefighters, but Sotomayor, as part of the per curiam opinion panel, didn’t see fit to discuss it in that case in the Second Circuit. It would be elucidating for the Senate Judiciary Committee if she had gone on the record in a judicial opinion in that case.
Even before the New Haven case, Sotomayor was under fire for her involvement with the Puerto Rican Legal Defense and Education Fund, a group that won “quota promotions” for blacks and Hispanics by suing government entities alleging discrimination, according to the Wall Street Journal. Sotomayor was on the board of directors of that group from 1980 through 1992 and served as vice president and chairman of its litigation committee throughout that time. She resigned from the group when she went on the federal bench.
The problem with affirmative action is that it brands all minorities who are admitted to universities—or those who win job promotions without overt testing requirements—as potentially inferior to whites. No person of color can ever be entirely sure whether he or she is advancing on merit or because of race.
Perhaps that’s what happened in the case of Sotomayor. At the pinnacle of her academic career at Yale, at the recruiting dinner, and following a truly distinguished academic record, perhaps she was loathe to believe it was attributable not to her hard work but just to the accident of the race in which she was born. Perhaps as years passed in her legal and judicial careers, a lingering doubt grew to dominate her thinking—that without affirmative action, she never would have succeeded.
If this is true, it is a tragedy. It is a good reason to abolish affirmative action, for it is doing more harm than good.
Or perhaps, as she advanced through the judiciary, Sotomayor realized she could move further by wrapping herself in the flag of affirmative action. If that was her conscious though cynical choice, she would not be the first person to sacrifice principle on the altar of ambition.
We can only take her at face value, however. What she went on to say at the videotaped conference on merit selection warrants consideration: “Since I have difficulty defining merit and what merit alone means, and in any context, whether it’s judicial or otherwise, I accept that different experiences in and of itself, bring merit to the system,” she said.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
Was the President done in by the economy, or by the politics of the economy?