The American Spectator : The Spectacle Blog : Ricci: A 9-0 Rejection of Sotomayor

Text Size

The Spectacle Blog

Ricci: A 9-0 Rejection of Sotomayor

By Doug Bandow on 6.30.09 @ 9:18AM

Don't be fooled by the 5-4 vote breakdown in the Supreme Court's ruling yesterday in Ricci v. DeStefano. The justices unanimously rejected Sonia Sotomayor's position.

Explains Stuart Taylor, Jr. in National Journal:

The Supreme Court's predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee's ruling to the contrary.

What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion" by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Not much of an endorsement for her nomination to the high court.

View all comments (5) | Leave a comment

Mike| 6.30.09 @ 11:08AM

What the Supreme Court did in the Ricci decision was address the tension in civil rights legislation that prohibited employment rules that result in "disparate impact" (Civil Rights Act of 1964) and the congressional codification of the Grigg v Duke Power Supreme Court decision that required employers to consider the impact of their hiring procedures on protected classes. The panel on which Sotomayer sat applied the circuit courts settled precedent in the N.H. case. Another panel deciding a case with similar circumstances arrived at the same decision. In other words, Sotomayer, played by the rules. She did not legislate from the bench. The Supreme Court addressed two prongs of civil rights legislation that were in conflict.

Liberal Reader| 6.30.09 @ 11:43AM

Personally, I applaud the high court's decision in the Ricci case.

However, the idea that it is a "rejection" of Sotomayor is completely wrong and reactionary pundits are misleading their readers and audiences with this kind of talk.

The Ricci case was one of 75 or so cases selected by the Supreme Court for review this year out of 7,500 submitted. The Court selected the case NOT because the lower court's justices did something wrong but because the law itself is ambiguous and difficult to apply.

Just read the decisions and you'll see no scorn for (or even mention of) Sotomayor's application of the law.

If you people actually read good reporting on the court, you'd also have discuss other cases decided this week which found Scalia siding with a far more "liberal" view of race issues.

Liberal Reader| 6.30.09 @ 11:46AM

Setting this argument aside, I have a question for American Spectator readers.

Is there a website or blog any of you know of where lively, intelligent, honest, civil political dialogue takes place.

I'm looking for a place where conservative views are well represented and well articulated.

I'm NOT looking for a place where every dissenter is shouted down as a communist, or where any question is treated as tantamount to treason. I'm NOT looking for a place where writers post a rehash of what Sean Hannity or Glenn Beck said yesterday. But I WOULD be looking for a place where ideas and opinions by true, conservative thinkers were presented and debated.

I'd appreciate any recommendations.

Jonny Scrum-half| 6.30.09 @ 5:50PM

Liberal Reader -- Try "The American Conservative." It's not only a true "conservative" voice, but it has the best blogs I've come across.

Regarding Mr. Bandow's quoting of Stuart Taylor, it's true that the "9-0" argument can be made if one wants to engage in propaganda. It's technically correct. But it's not really a fair argument.

Ginsburg's dissent essentially created a new standard by which actions (like New Haven's in Ricci) would be judged, rejecting the City's "intent," as the lower courts had focused on. The lower courts' focus was reasonable, however, because the lawsuit was for "intentional" discrimination, and the focus of such claims has historically been (and, in the vast majority of cases, will continue to be) on the employer's intent. It's only in the context of an employer rejecting a job-related test because of fears of a disparate-impact lawsuit that "intent" no longer would matter (according to Justice Ginsburg's dissent). Instead, in a distinction that I'm not sure makes a difference, Justice Ginsburg would have the court focus on whether the City had "good cause" to believe that it risked a disparate-impact lawsuit.

In short, any suggestion that the Second Circuit's ruling in Ricci was somehow rejected as without basis really isn't good-faith argument, but rather "spin" engaged in by people with an agenda.