Grasping at Straws: Sotomayor, Ricci, and the Lunatic Fringe

The far right's attack on Judge Sonia Sotomayor is not going well, and desperation has clearly set in. In an unbelievable post today, Wendy Long of the ironically-named Judicial Confirmation Network claims that the Supreme Court's bitterly divided 5-4 ruling in Ricci v. DeStefano was actually a 9-0 slap in the face to Judge Sotomayor, who joined the unsigned opinion of the Second Circuit that the Supreme Court reversed today. Long is joined in these distortions by Rush Limbaugh, who proclaimed today that the Supreme Court found that Judge Sotomayor "was indeed a racist" in a "nine-zip decision." Both Long and Limbaugh need to read the Court's opinion. Nothing in what the Court comes close to supporting these blatant mischaracterizations.

Let's start with Justice Kennedy's majority opinion, joined by the Court's other conservative Justices. Justice Kennedy explains that the Court granted certiorari in Ricci in order to make new law in an area that was far from settled. Title VII bans both intentional racial discrimination in employment as well as neutral employment policies that have a disparate racial impact, and Ricci gave the Court the opportunity to assess the relationship between the two. As the Court observed, "[t]his action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue." Justice Kennedy's opinion for the Court focuses on "providing guidance to employers and courts" in a difficult area of employment discrimination, not on castigating the Second Circuit as Long and Limbaugh suggest.

Justice Kennedy's majority opinion takes issue with the lower courts' treatment of this case precisely once, on pages 19-20, where the Court disagrees with the District Court's ruling (affirmed in a per curiam order joined by Judge Sotomayor) that "the Defendants' motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent." This is an important point of disagreement, but the District Court's holding was effectively dictated by a prior, binding Second Circuit ruling in Hayden v. County of Nassau, which held, "[T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants."

Whether you agree with Justice Kennedy or the Second Circuit/District Court on this issue (we think the lower courts had the better of this argument), it is very difficult to criticize the District Court or Judge Sotomayor on appeal for following prior rulings of her circuit. And we note that Justice Kennedy was far more pointed in his criticism of the Petitioners in Ricci, who proposed a standard that Kennedy called "broad and inflexible" and threatened to render the disparate impact standard of Title VII a dead letter. Justice Kennedy admits "searching for a standard that strikes a more appropriate balance" than that proposed by the parties or the lower courts. The Supreme Court is free to do just that, but lower court judges like Judge Sotomayor can hardly be criticized for following the law as it comes to them rather than anticipating the Court's next move. (Click here for a more-detailed explanation of why the Second Circuit's short per curiam opinion was an example of judicial restraint.)

Long and Limbaugh, likewise, fail to show any daylight between the Second Circuit panel opinion Judge Sotomayor joined, and Justice Ginsburg's dissenting opinion, which urged affirmance of the Second Circuit's judgment - because there really is none. Like the panel opinion, Justice Ginsburg's dissent -- joined by Justices Stevens, Souter and Breyer -- found that New Haven had not engaged in racial discrimination in setting aside a flawed test that had a significant disparate impact on African American firefighters. Significantly, Justice Ginsburg's dissent recognized that the panel's approach was dictated by Second Circuit precedent. Although Justice Ginsburg quibbled with the test emerging from these precedents - she would have modified pre-Ricci Second Circuit precedent in minor ways - her dissent is hard to read as anything but a loud affirmation that the Second Circuit panel, including Judge Sotomayor, got the law right in upholding New Haven's right to withdraw a discriminatory promotions exam. Long and Limbaugh's claims to the contrary are pure fantasy.

This post was written by Doug Kendall and David Gans. Doug Kendall is the President of Constitutional Accountability Center (CAC), a law firm, think tank and action center based in Washington DC, David Gans is CAC's Human and Civil Rights Director. For more on the progressive promise of the Constitution's text and history visit CAC's website or blog.

Comments

[HNWBanker]

As Justice Kennedy's opinion noted, "there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other equally valid and less discriminatory tests were available to the City." He concluded that New Haven had violated Title VII of the Civil Rights Act, which forbids employer discrimination.
But what need is there for pesky things like evidence when a judge has "empathy" — the quality that President Obama said was so important in a Supreme Court justice? - IBD

Wait, did the test have the word regatta in it? Good heavens...must be racist.

[Doofus]

' The far right's attack on Judge Sonia Sotomayor is not going well,
and desperation has clearly set in. '

Kind of like Dick Cheney with a shotgun. Bound to hit SOMETHING.

' the Supreme Court's bitterly divided 5-4 ruling in Ricci v. DeStefano
was actually a 9-0 slap in the face to Judge Sotomayor...'

Well, a 5-4 slap anyway. Who would have guessed they were that political?

[1will]

It doesn't matter if the firefighters are qualified. The important thing is they look like a "We Are The World" video. Quotas over quality!!

[LABC]

Something you don't have to worry about - you are not qualified for anything and there is no need to fill a job position with a reebo to meet a quota.

[k1dork]

I think it is best put in perspective by asking yourself, if YOUR family was trapped in a burning building, would you want qualified firemen on the scene, or firemen who got their jobs so the fire department could meet their racial quota?

[Mercedes Beene]

Ah, yes, we remember the last time SCOTUS ruled in favor of a "more qualified" candidate...in case you were sleeping during the contested 2000 presidential election.

[LABC]

First of all - the testing was for the purposes of a promotion to captain or lieutenant, not for the basic job of a firemen. Second, I don't go around assuming that only white males are qualified for jobs and everyone else isn't. And thirdly, to put it in perspective, if the police or firemen have rescued me, I am not that interested in how their test scores ranked...

yeah, the name "dork "does work on you...

[Mercedes Beene]

WORD!

[ZachWayne]

I agree with Justice Ginsburg that it is racially neutral to discard a test in an effort to eliminate racial bias unintentionally built in to that test. The majority essentially held that the City acted discriminatorily because, as Justice Kennedy argued, the City's action did not meet the new heightened standard.

All the same, it is good people paid attention to this case because it is a good example of Judge Sotomayer following precedent. Justice Souter, whom Judge Sotomayer would replace, sided with her on the law.

[sdskelton03]

So it is not possible that the white firefighters did better on the test because they prepared better? Is it possible they did better on the test because they are just more talented?

So in the future, if white people want civil service promotions, they have to make sure they do well on the test, but not too well....I guess.

[slb83]

No one is disagreeing that they didn't do better. The issue is that tests was measuring a different kind of intelligence that is not required for this occupation. All intelligence is not the same. There is a difference between asking someone "What is the appropriate response given this situation?" Vs "What is the segment addition postulate?" Moreover, there were no Blacks or Latinos promoted. No one was promoted. Therefore, this notion that they somehow earned a promotion because they studied in a book or pay for extra classes does not mean that you are qualified. Moreover, just because one does well does not mean they are entitled to a promotion.

[jimbobre]

According to Justice Ginsberg's dissent, some firefighters (mostly white) had more access to study guides while others waited because there was a backlog on orders. They also presumably had access to uncles, fathers and family friends who were, or had been, leaders in the fire department. Most of the black and Hispanic firefighters were the first in their family on the job. The justice also wrote that an outsized portion of the test asked questions pertaining to operators (vehicle drivers); a job that overwhelmingly went to white firefighters.

[CalexenderJ]

Wait a tic, you're telling me that Limbaugh grossly distorted facts to the point where he was basically making stuff up in order to try and cram reality into his narrow world view in which all conservatives are right and all liberals are wrong?

I never would have seen that coming.

[LMPE]

The lunatic fringe never knows anything.

[silverball]

...as usual rush doesn't let the facts get in his way....is he a supporter of colbert's premise that "truth has a liberal bias...??? LOL...NOT.....

[Colaholic]

Justice Kennedy explains that the Court granted certiorari in Ricci in order to make new law in an area that was far from settled.

Make new law? Isn't that what those nasty, activist judges do?