Ricci Raises Questions About Sotomayor’s Judgment
July 7, 2009
‘As we consider her nomination to the Supreme Court, my colleagues should ask themselves this important question: is she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says’
WASHINGTON, D.C. - U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor Tuesday regarding Supreme Court nominee Sonia Sotomayor:
“Last week, the Supreme Court decided the case of Ricci v. DeStefano in which it ruled that the City of New Haven, Connecticut unlawfully discriminated against a number of mostly-white firefighters by throwing-out a standardized employment promotion test because some minority firefighters had not performed as well as they had.
“In this case, the Supreme Court was correct in my view. The government should not be allowed to discriminate intentionally on the basis of race on the grounds that a race-neutral, standardized test — which is administered in a racially-neutral fashion — results in some races not performing as well as others.
“Yet regardless of where one comes out on this question, there are at least two aspects of how all nine Justices handled this very important case that stand in stark contrast to how Judge Sotomayor and her panel on the Second Circuit handled it — and which call into question Judge Sotomayor’s judgment.
“First, this case involves complex questions of federal employment law; namely, the tension between the law’s protection from intentional discrimination — known as ‘disparate treatment’ discrimination — and the law’s protection from less overt forms of discrimination, known as ‘disparate impact’ discrimination.
“It also involves important constitutional questions — such as whether the government, consistent with the Fourteenth Amendment’s guarantee of equal protection under the law, may intentionally discriminate against some of its citizens in the name of avoiding possible discriminatory results against other of its citizens.
“Every court involved in this case realized that it involved complex questions that warranted thorough treatment — every court, that is, except for Judge Sotomayor’s panel. The district court, which first took up the case, spent 48 pages wrestling with these issues. The Supreme Court devoted 93 pages to analyzing them. By contrast, Judge Sotomayor’s panel dismissed the firefighters’ claims in just six sentences — a treatment that her colleague and fellow Clinton appointee, Jose Cabranes, called ‘remarkable,’ ‘perfunctory,’ and not worthy ‘of the weighty issues presented by’ the firefighters’ appeal.
“It would be one thing if the Ricci case presented simple issues that were answered simply by applying clear precedent. But the Supreme Court doesn’t take simple cases. And at any rate, no one buys that this case was squarely governed by precedent, not even Judge Sotomayor. We know this because in perfunctorily dismissing the firefighters’ claims, Judge Sotomayor didn’t even cite a precedent.
“Moreover, she herself joined an en banc opinion of the Second Circuit that said the issues in the case were ‘difficult.’ So, to quote the National Journal’s Stuart Taylor, the way Judge Sotomayor handled the important legal issues involved in this case was ‘peculiar’ to say the least. And it makes one wonder why her treatment of these weighty issues differed so markedly from the way every other court has treated them and whether her legal judgment was unduly affected by her personal or political beliefs.
“Second, all nine Justices on the Supreme Court said that Judge Sotomayor got the law wrong. She ruled that the government can intentionally discriminate against one group on the basis of race if it dislikes the outcome of a race-neutral exam and claims that another group may sue it. Or, as Judge Cabranes put it, under her approach, employers can ‘reject the results of an employment examination whenever those results failed to yield a desired racial outcome, i.e., failed to satisfy a racial quota.’
“No one on the Supreme Court, not even the dissenters, thought that was a correct reading of the law.
“Justice Kennedy’s majority opinion said that before it can intentionally discriminate on the basis of race in an employment matter, the government must have a ‘strong basis in evidence’ that it could lose a lawsuit by a disgruntled party claiming a discriminatory effect of an employment decision. And even Justice Ginsburg and the dissenters said that before it intentionally discriminates, the government must have at least ‘good cause’ to believe that it could lose a lawsuit by the disgruntled party.
“Not Judge Sotomayor. She evidently believes that statistics alone allow the government to intentionally discriminate against one group in favor of another if it claims to fear a lawsuit.
“Stuart Taylor notes why this is problematic. As he put it, the Sotomayor approach would, quote, ‘risk converting’ federal anti-discrimination ‘law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.’ Under such a regime, Taylor notes, ‘no employer could ever safely proceed with promotions based on any test on which minorities fared badly.’
“It is one thing to get the law wrong, but Judge Sotomayor got the law really wrong in the Ricci case, and the New Haven firefighters suffered for it. To add insult to injury, the perfunctory way in which she treated their case indicates either that she didn’t really care about their claims, or that she let her own experiences planning and overseeing these types of lawsuits with the Puerto Rican Legal Defense and Education Fund affect her judgment in this case.
“As has been reported, before she was on the bench, Judge Sotomayor was in leadership positions with PRLDEF for over a decade. While there, she monitored the group’s lawsuits and was described as an ‘ardent supporter’ of its litigation projects—one of the most important of which was a plan to sue cities based on their use of civil service exams. In fact, she has been credited with helping develop the group’s policy of challenging these types of standardized tests.
“Is the way Judge Sotomayor treated the firefighters’ claims in the Ricci case what President Obama means when he says he wants judges who can ‘empathize’ with certain groups? Is this why Judge Sotomayor herself said she doubted that judges can be impartial, ‘even in most cases’? It’s a troubling philosophy for any judge — let alone one nominated to our highest court — to convert ‘empathy’ into favoritism for particular groups.
“The Ricci decision is the tenth of Judge Sotomayor’s cases that the Supreme Court has reviewed. And it is the ninth time out of ten that the Supreme Court has disagreed with her. In fact, she is 0 for 3 during the Supreme Court’s last Term.
“The President says that only 5 percent of cases that federal judges decide really matter. I don’t know if he’s right. But I do know that, by necessity, the Supreme Court only takes a small number of cases, and it only takes cases that matter. And I know that in the Supreme Court, Judge Sotomayor’s been wrong 90 percent of the time.
“In the Ricci case — her third and final reversal of this term — Judge Sotomayor was so wrong in interpreting the law that all nine justices, of all ideological stripes, disagreed with her. As we consider her nomination to the Supreme Court, my colleagues should ask themselves this important question: is she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says?”
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WASHINGTON, D.C. - U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor Tuesday regarding Supreme Court nominee Sonia Sotomayor:
“Last week, the Supreme Court decided the case of Ricci v. DeStefano in which it ruled that the City of New Haven, Connecticut unlawfully discriminated against a number of mostly-white firefighters by throwing-out a standardized employment promotion test because some minority firefighters had not performed as well as they had.
“In this case, the Supreme Court was correct in my view. The government should not be allowed to discriminate intentionally on the basis of race on the grounds that a race-neutral, standardized test — which is administered in a racially-neutral fashion — results in some races not performing as well as others.
“Yet regardless of where one comes out on this question, there are at least two aspects of how all nine Justices handled this very important case that stand in stark contrast to how Judge Sotomayor and her panel on the Second Circuit handled it — and which call into question Judge Sotomayor’s judgment.
“First, this case involves complex questions of federal employment law; namely, the tension between the law’s protection from intentional discrimination — known as ‘disparate treatment’ discrimination — and the law’s protection from less overt forms of discrimination, known as ‘disparate impact’ discrimination.
“It also involves important constitutional questions — such as whether the government, consistent with the Fourteenth Amendment’s guarantee of equal protection under the law, may intentionally discriminate against some of its citizens in the name of avoiding possible discriminatory results against other of its citizens.
“Every court involved in this case realized that it involved complex questions that warranted thorough treatment — every court, that is, except for Judge Sotomayor’s panel. The district court, which first took up the case, spent 48 pages wrestling with these issues. The Supreme Court devoted 93 pages to analyzing them. By contrast, Judge Sotomayor’s panel dismissed the firefighters’ claims in just six sentences — a treatment that her colleague and fellow Clinton appointee, Jose Cabranes, called ‘remarkable,’ ‘perfunctory,’ and not worthy ‘of the weighty issues presented by’ the firefighters’ appeal.
“It would be one thing if the Ricci case presented simple issues that were answered simply by applying clear precedent. But the Supreme Court doesn’t take simple cases. And at any rate, no one buys that this case was squarely governed by precedent, not even Judge Sotomayor. We know this because in perfunctorily dismissing the firefighters’ claims, Judge Sotomayor didn’t even cite a precedent.
“Moreover, she herself joined an en banc opinion of the Second Circuit that said the issues in the case were ‘difficult.’ So, to quote the National Journal’s Stuart Taylor, the way Judge Sotomayor handled the important legal issues involved in this case was ‘peculiar’ to say the least. And it makes one wonder why her treatment of these weighty issues differed so markedly from the way every other court has treated them and whether her legal judgment was unduly affected by her personal or political beliefs.
“Second, all nine Justices on the Supreme Court said that Judge Sotomayor got the law wrong. She ruled that the government can intentionally discriminate against one group on the basis of race if it dislikes the outcome of a race-neutral exam and claims that another group may sue it. Or, as Judge Cabranes put it, under her approach, employers can ‘reject the results of an employment examination whenever those results failed to yield a desired racial outcome, i.e., failed to satisfy a racial quota.’
“No one on the Supreme Court, not even the dissenters, thought that was a correct reading of the law.
“Justice Kennedy’s majority opinion said that before it can intentionally discriminate on the basis of race in an employment matter, the government must have a ‘strong basis in evidence’ that it could lose a lawsuit by a disgruntled party claiming a discriminatory effect of an employment decision. And even Justice Ginsburg and the dissenters said that before it intentionally discriminates, the government must have at least ‘good cause’ to believe that it could lose a lawsuit by the disgruntled party.
“Not Judge Sotomayor. She evidently believes that statistics alone allow the government to intentionally discriminate against one group in favor of another if it claims to fear a lawsuit.
“Stuart Taylor notes why this is problematic. As he put it, the Sotomayor approach would, quote, ‘risk converting’ federal anti-discrimination ‘law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.’ Under such a regime, Taylor notes, ‘no employer could ever safely proceed with promotions based on any test on which minorities fared badly.’
“It is one thing to get the law wrong, but Judge Sotomayor got the law really wrong in the Ricci case, and the New Haven firefighters suffered for it. To add insult to injury, the perfunctory way in which she treated their case indicates either that she didn’t really care about their claims, or that she let her own experiences planning and overseeing these types of lawsuits with the Puerto Rican Legal Defense and Education Fund affect her judgment in this case.
“As has been reported, before she was on the bench, Judge Sotomayor was in leadership positions with PRLDEF for over a decade. While there, she monitored the group’s lawsuits and was described as an ‘ardent supporter’ of its litigation projects—one of the most important of which was a plan to sue cities based on their use of civil service exams. In fact, she has been credited with helping develop the group’s policy of challenging these types of standardized tests.
“Is the way Judge Sotomayor treated the firefighters’ claims in the Ricci case what President Obama means when he says he wants judges who can ‘empathize’ with certain groups? Is this why Judge Sotomayor herself said she doubted that judges can be impartial, ‘even in most cases’? It’s a troubling philosophy for any judge — let alone one nominated to our highest court — to convert ‘empathy’ into favoritism for particular groups.
“The Ricci decision is the tenth of Judge Sotomayor’s cases that the Supreme Court has reviewed. And it is the ninth time out of ten that the Supreme Court has disagreed with her. In fact, she is 0 for 3 during the Supreme Court’s last Term.
“The President says that only 5 percent of cases that federal judges decide really matter. I don’t know if he’s right. But I do know that, by necessity, the Supreme Court only takes a small number of cases, and it only takes cases that matter. And I know that in the Supreme Court, Judge Sotomayor’s been wrong 90 percent of the time.
“In the Ricci case — her third and final reversal of this term — Judge Sotomayor was so wrong in interpreting the law that all nine justices, of all ideological stripes, disagreed with her. As we consider her nomination to the Supreme Court, my colleagues should ask themselves this important question: is she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says?”
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