The Supreme Court's 5-4 ruling in the Ricci case — which favored white firefighters in a racial discrimination case — not only has the potential to affect employment practices nationwide but could also give ammunition to opponents of Sonia Sotomayor, who is President Obama's nominee to fill a court vacancy.
Sotomayor was part of a three-judge panel of the U.S. Court of Appeals, 2nd Circuit, that dismissed the firefighters' claim of discrimination in their suit against the city of New Haven, Conn. Both supporters and opponents of Sotomayor's nomination were closely watching today's court decision to see how — or if — the ruling would play out in the confirmation battle.
The guess here: not too much. The 5-4 decision was not unexpected. But I suspect it emboldens some of her opponents to argue the case to be made against her ... as opposed to the silly stuff we saw earlier, such as the "she's a reverse racist" mouthings from the likes of Rush Limbaugh, Tom Tancredo and Newt Gingrich (though Newt did back away from some of his comments).
Wendy Long, counsel to the conservative Judicial Confirmation Network, responded to today's court decision this way:
Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession. What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.
The firefighters in New Haven who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas, and the Supreme Court has now confirmed that they did not deserve to have their claims buried and thrown out by Judge Sotomayor.
Another conservative opponent of Sotomayor, Ed Morrissey, wrote on the Hot Air blog that the court decision "creates a big problem for Obama and the Democrats in Congress":
They certainly have the votes to confirm Sotomayor, but their big sell — that she was one of the appellate court's most brilliant minds — just took a body blow on this decision. Most people want to move past the old arguments on race and hiring, feeling that forty years of affirmative-action policies have run their course. Having to defend a jurist who attempted to impose them in a court case will not make Sotomayor seem moderate or reasonable at all, but extreme and perhaps less than competent.
Ironically, the Democrats have pushed for an earlier confirmation hearing, as soon as mid-July, while Republicans wanted a September date. I suspect the two may switch sides now, with the GOP wanting to hold the hearings in the wake of Sotomayor's high-profile reversal, and Democrats perhaps hoping that other stories will eclipse it. Regardless of when this confirmation hearing takes place, expect Ricci to play a central part in the questioning.
Contentions, the blog of Commentary magazine, has this post from Jennifer Rubin:
Despite the best efforts of Sonia Sotomayor and her Second Circuit panel to bury his claim in a cursory opinion, Frank Ricci made it to the Supreme Court and today received justice. In a 5-4 decision the Court ruled that under Title VII, the results of Ricci's promotional test could not be thrown out simply because the city of New Haven feared a lawsuit. ...
Those of us who made this identical argument are cheered. Those who saw a great injustice in dismissing Ricci's claim are heartened that he received a clear and definitive win. The proponents of identity politics and defenders of Sotomayor have their work cut out explaining how Ricci couldn't manage to find a full resolution of his claim in the Second Circuit and why we should have confidence in Sotomayor's ability to spot, let alone resolve correctly, important discrimination issues.
Here's Andrew Grossman, writing in The Foundry blog for The Heritage Foundation:
Yes, it is significant, and objectionable, that Judge Sotomayor chose to endorse what the Supreme Court found to be a transparently discriminatory practice on the part of New Haven when it sought to deny promotions to firefighters because of their skin color.
But it is, in a way, even worse that her court refused to give the case a fair hearing and reasoned decision — something that she would do again in Maloney v. Cuomo by declining to provide any consideration of whether the Second Amendment right to self-protection is a "fundamental" right that must be observed by the states. Doing justice, after all, is the duty of a judge. Shirking tough or inconvenient cases is incompatible with the judicial role.
And here's a release from Rep. Tom Price (R-GA), who chairs the Republican Study Committee:
By overturning Judge Sotomayor's decision, the Supreme Court has scored a victory for the principle that justice should be blind. A Supreme Court Justice must be objective above all else. Americans should be concerned that a nominee to our highest court has a record of being blinded by empathy for one group while endorsing discrimination against others.
Appointments to the Supreme Court don't come with an expiration date. In light of today's outright reversal, Americans deserve to completely understand her judicial philosophy. Rather than rush Judge Sotomayor through the confirmation process, the Senate should take the time to fully vet her record. It would be better to deliberate with care now than to rush and regret this decision.
But the above arguments are a bit simplistic, argues the blog of Tapped, from The American Prospect:
The city [New Haven] didn't throw the tests out because it didn't want any white firefighters, or because it believes whites aren't smart enough to be firefighters, or because whites are inherently unskilled and therefore can't be firefighters. The city didn't throw the tests out because they contradicted long-held beliefs about the "racial characteristics" of whites. The city threw the test results out because it feared getting sued for discriminating against others who didn't fare well on the test. Saying that the city simply "threw out the test results because the higher scoring candidates were white" is not exactly correct. ...
Those opposed to Sotomayor's nomination partially on the grounds that minorities have all the rights these days already have plenty to work with.
Eric Boehlert, writing in the County Fair blog of Media Matters for America, the liberal media watchdog group, says the reaction to the decision is "one we saw coming a mile away":
Not only was the reversal a foregone conclusion, but so too, was the narrative now being played out in the press. The press and Republicans (notice how they work in tandem) have been touting this reversal for weeks, hyping it as a potentially "embarrassing" reversal, which would (supposedly) raise all kind of doubts about Sotomayor's smarts and her ability as a judge.
And trust us, this meme is already being hammered and will likely continue throughout the week: Sotomayor was reversed — she got smacked down — by the Supreme Court! It's a huge deal.
Except, of course, it is not. Judges get reversed everyday. In fact, the system of American jurisprudence is built upon the idea of judges getting reversed. It happens all the time. And yes, the Supreme Court reverses judges all the time. But only now, in the case of Sotomayor, is the press pretending that that reversal is a singular rebuke; that it's a mark of shame for Sotomayor because she got the case wrong.
Let's take a step or two back and just look at how idiotic a premise this is: Because five of the nine SCOTUS justices ruled to reverse the case, Sotomayor ought to be ashamed because she got the case all wrong. But what about the four Supreme Court justices who ruled in favor of Sotomayor's Ricci's ruling, should they also be embarrassed because they got the case 'wrong'? Should we question their qualifications for the highest court in the country?
Do you see the absurdity? The press and Republicans are peddling this completely novel notion that reversal = shame.