Sotomayor Speaks On Ricci

by Melissa Bailey | July 14, 2009 1:53 PM | | Comments (15)

sotomayorsmile.pngWashington, D.C. — (Updated) Speaking publicly for the first time on Ricci v. DeStefano since the Supreme Court reversed her decision on the case, Sonia Sotomayor said she was merely upholding legal precedent when she joined two judges in dismissing the case.

Sotomayor made the remarks on Tuesday morning, the second day of her Supreme Court nomination hearings. Her comments broke her silence on the case since the since the Supreme Court ruled in June in favor of the plaintiffs, a group of mostly white New Haven firefighters who filed suit when the city tossed out promotional exam results because African-Americans performed poorly.

Once again Tuesday, the New Haven firefighter case was providing the fireworks in a national debate over racial hiring.

Sotomayor has been under fire from Republicans for the case: She was part of a three-member panel of judges that, in a brief, one-paragraph statement, upheld a lower court’s decision to dismiss the case. Republicans have suggested that she her “biases” or “personal preferences” may have led her to dismiss the case; others have used it as fodder to paint her as an affirmative action activist. The lead plaintiff, city firefighter Frank Ricci, is due to appear at the hearings as a Republican-selected witness later this week.

Sen. Jeff Sessions, R-Alabama, quickly leaped on the case as questioning opened Tuesday morning.

“So, you’ve stated that your background affects the facts that you choose to see,” he said to the judge. “The fact that the New Haven firefighters had been subject to discrimination, was that a fact you chose not to see in this case?”

“No, sir,” said Sotomayor.

Leaning into a microphone before the panel of senators, the judge couched her decision on Ricci as far from personal activism. She said she and the other two judges on the panel unanimously decided the case on the basis of a thorough, 78-page decision by the District Court and on precedent from the second circuit court.

“Activist” Irony

IMG_4136.jpgThe Ricci case was first raised 23 minutes into the hearing by Sen. Patrick Leahy, a Vermont Democrat and chairman of the committee. Leahy (at left in photo with Sen. Herb Kohl, D-Wisconsin) let the judge defend her actions on Ricci before Republicans got the chance to attack her on the topic.

“The issue was not what we would do or not do, because we were following precedent,” said Sotomayor. “The issue in Ricci was what the city did or could do when it was presented with a challenge to one of its tests” for promotion.

IMG_4105.jpg“This was not a quotas case. This was not an affirmative action case,” she said. “This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups.”

The city was faced with the possibility of a lawsuit from employees who were disparately impacted by the test, she noted.

“The question before the panel was, was the decision before the city based on race, or based on its understanding of what the law required?” Given second-circuit precedent, Bushey v. New York State Civil Service Association, she said, the panel concluded that the city’s decision was lawful.

The Supreme Court, said Sotomayor, looking at the case, “applied a new standard” from a different area of law.

Leahy agreed with her interpretation that she was merely following “fidelity to the law,” not inventing new rules.

“Ironically, if you had done something other than follow the precedent, some of them would now be attacking you as being an activist,” said Leahy. “You followed the precedent. So now they are attacking you as being biased and racist.

“It’s kind of a unique situation. You’re damned if you do, damned if you don’t.”

Leahy, Sessions Spar

The Ricci back-and-forth led to an unusual testy exchange between the committee’s ranking Democrat and Republican.

IMG_4141.jpg“Judge,” Sessions interjected at one point during Sotomayor’s remarks, “there was … unease within your panel” about not providing a more thorough look at the issues raised by the case. Sessions brought up the fact that another Second Circuit judge, New Haven’s Jose Cabranes, criticized Sotomayor and her colleagues for issuing such a terse opinion.

“That was up for debate. The circuit voted. You voted not to reconsider the prior case. You voted to stay with the decision of the circuit. And in fact your vote was the key vote,” Sessions excoriated Sotomayor.

“Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could have changed that case. So in truth, you weren’t bound with that case. You must have agreed with it and agreed with the opinion…”

Sen. Leahy interjected: “Is that a question?”

“That was a response to some of what you said, Mr. Chairman,” Sessions shot back, “because you misrepresented” the case.

“I obviously disagree with that,” Leahy responded.

Ricci “Smear”

As he hinted yesterday, Sen. Orrin Hatch, R-Utah, seized his chance to jump on the Ricci case, too. He questioned Sotomayor’s representation that her Ricci ruling was based on binding precedent.

The decision issued by Sotomayor and her two fellow appellate judges cites only the U.S. District Court ruling, which tossed out the case by summary judgment, without a trial. That decision, by New Haven’s U.S. District Judge Janet Bond Arterton, cited three second-circuit cases as precedent. Hatch questioned whether those cases really served as precedent for Ricci, because they dealt with “race norming” and the design of an employment test, rather than the results of such a test.

Hatch fired the questions from near the center of the elevated stage, where he sat with his arms crossed. Sotomayor took notes in pencil and responded calmly.

Sotomayor replied that all three did share the same basic principles of Ricci: all three concerned employers exposed to Title VII lawsuits because of disparate impact from an employment practice.

After an extensive grilling over Sotomayor’s role in the case, Hatch brought up a rumored “smear” against Frank Ricci. He was referring to the recent revelation that Ricci got his job through his own discrimination complaint, claiming he was denied employment on the basis of his dyslexia.

“There’s a rumor that People For the American Way, that these people have been smearing Frank Ricci, because he may be willing to be a witness in these proceedings. I hope that’s not true,” said Hatch.

“I know you had nothing to do with it,” he quickly told Sotomayor, “so don’t, don’t, don’t think I’m trying to make a point against you. I’m not. But I’m making a point that that’s the type of stuff that doesn’t belong in Supreme Court nomination hearings, and I know you would agree with me on that.”

“Absolutely, senator,” declare Sotomayor. “I would never ever endorse, approve or tolerate if I had any control” over that kind of conduct. She didn’t specifically address whether Ricci is being smeared, but she called smearing “reprehensible.”

In a press statement, People For the American Way Executive Vice President Marge Baker swung back at the allegations with this statement:

“With all due respect to Senator Hatch, he’s attacking a straw man. It is not a smear to point out than an individual used the law to protect his interests. It’s time to get past this distraction and have an honest discussion about the importance of anti-discrimination laws for all people.”

Past stories on fire department promotions and the Ricci case:

• Ricci Takes Center Stage
• Watley: I’d Have Promoted Ricci
• Firebirds, NAACP: Ricci Won’t Stop Us
• “If You Work Hard You Can Succeed In America”
• Was He The Culprit?
• Supreme Court Overturns City On Ricci
• On Page 25, A Hint
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court







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Comments

Posted by: lance | July 14, 2009 11:24 AM

watch this and get back to me. she's an activist judge whose allegiance is closer to victor gerena than it is to john q. public.

http://www.youtube.com/watch?v=OfC99LrrM2Q

Posted by: Umm Lance | July 14, 2009 12:24 PM

Lance,

Read this and get back to me:

http://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution

It's called the U.S. Constitution, Article 3. You appear to be unfamiliar with it.

Hopefully that helps clear up your mistaken understanding of how this country works. You may want to generally broaden your reading beyond whatever right wing screaming websites you regularly check in on.

Good luck and have a nice day.

Posted by: James FP | July 14, 2009 12:30 PM

Yes, because a 34 second clip adequately conveys the full jurisprudential views of a nominee with the most extensive Federal judicial record in recorded memory.

And really, what does Victor Gerena have to do with any of this? I sense some latent racism there.

Posted by: Bruce | July 14, 2009 12:54 PM

Interesting clip, Lance, but isn't she just telling it like it is? Recognizing the practice doesn't mean she participates or supports it -- she even says something to the effect that she doesn't.

Are there any particular cases in which she is accused of policymaking from the bench? I haven't heard of any. In the Ricci case it seems clear that she was just following precedent -- exactly the opposite of what you would expect from an activist judge.

Posted by: lance | July 14, 2009 3:13 PM

keep toking on that hope and change bong bruce. you and obama (1/2) may be ashamed of being white, but i'm not.

Posted by: Bruce | July 14, 2009 4:45 PM

Lance, I don't know how being white relates to your clip or my comment. I thought you were talking about legislating from the bench. Did I miss something?

Posted by: Legal Cat | July 14, 2009 5:33 PM

Kind of ironic, isn't it? To be called an activist judge that is.

Seems to me that if she would have ruled against the city and in favor of the firefighters should would have made a decision against 40 years of settled law or stare decisis.

An Appellate court judge is charged with ensuring that lower court decisions are in accordance with established law. If she really was an activist judge she would have gone outside 40 years of settled civil rights law and searched for a reason to overturn the lower court outcome. Yet she did not.

Posted by: blue dog dem | July 14, 2009 7:59 PM

I actually think she will make a good Justice, even though some of her statements make you pause. If someone is an activist, however, they usually are not ruling against a liberal precedent. Just because she refused, along with others, to hear the appeal, does not make her any more or less an activist on the bench. To hide behind bad law, whether precedent or not, is not what I want of a justice either. Remember, one of her colleagues wanted to hear the Ricci case, but was out-voted because he felt (and apparently so did SCOTUS) that it was an issue that needed to be addressed.

BTW, there has to be better sitations than Wikipedia.

Posted by: Um Blue Dog | July 15, 2009 2:23 AM

Actually Blue Dog,

The citation was an easy way for Lance to find Article 3. So I was quite comfortable using wikipedia.

There is no mention in Article III of activist judges. I am not ever sure what an "activist" judge is or why its definitely a bad thing. Were the Judges who decided Brown v. Board of Ed "activist"? How about the ones who decided Dred Scot?

Being a Supreme Court justice means that you hear the cases that raise to the level of a Constitutional question as determined by the Justices themselves. So that pretty much makes all Justices activists. They pick their cases and they generally do so because they want to firmly establish a new rule or at least clarify an existing one.

They don't hear cases to say, "last year we said X and we just want to remind everyone that we still believe X." The lower courts need only point to Supreme Court decisions to ensure that this happens.

Lance's position ... is such a thing as an activist judge is nonsense. And that we should be afraid of activism on the Supreme Court is silly political double-speak. Alito and Roberts have facilitated repeated reversals of long established precedent. But they are protected with lifetime appointments so they can. And if they decide to change later in life, they can do that too. That's what Article III establishes.

Since apparently the new gold standard is to follow precedent (and to use Latin expressions like stare decisis), I suppose that every Justice for the first 50 years or so of the Supreme Court was an activist. I mean how dare they decide Marbury v. Madison if there were no prior decisions to base it on.

"Activism" is what people like Lance call losing an election. Like Republican Senator Lindsey Graham said -- elections have consequences when it comes to the nomination of new Justices. So Bush got to appoint his and now Obama gets to appoint his. And generally these appointments (except Souter) are what you would expect from the President who appoints them. That's not activism, that's an election. There's a difference.

So is that better than Wikipedia?

Posted by: blue dog dem | July 15, 2009 8:54 AM

Um, Blue Dog:

No. It is your version, and it is correct. For a source to be cited it should be well-established and not info submitted and edited by unreliable sources.

As I stated in my post, I am for Sotomayor as I think she is a good jurist, though she really needs to keep some of her personal thoughts to herself. Why you direct your post to me is humorous, since the only thing we disagreed with was your source material and I didn't call you out personally. Insecure?

As an explanation, activist judges occurred during the Warren Court, especially Trop v. Dulles, wherein the Court wrote that "the evolving standards of decency that mark the progress of a maturing society" led the Court to make the "appropriate" interpretations of the Constitution, rather than following the letter of the law.

All of the previous justices to whom you refer went by the letter of the law (Constitution), even when precedent was not available. Dred Scott, Brown v. Bd of Ed, and other civil rights cases were an expansion of pre-established liberties to heretofore unrecognized minorities.

I can't speak for Lance, and he definitely does not speak for me, and I really don't appreciate being considered from the same mold. However, I do enjoy reading posts from those who like to distort quotations to suit their arguments, and that is from both sides of the argument.

Posted by: lance | July 15, 2009 10:04 AM

she clearly stated the role if the appellate court is to make policy. now i may have only went to QU law (with no.... err..."grants" i might add)but i know that the job is actually to interpret law.

and she's no stranger to the race card either....

http://www.cnn.com/2009/POLITICS/07/02/sotomayor.documents/index.html?eref=rss_politics

I said at the outset of obama's candidacy that his mission was to loot from whitey, and he's doing just that. he would only appoint a judge he knew for a fact would help him achieve that goal.

Posted by: The Count | July 15, 2009 11:39 AM

The morale of the story being that, here in America, a "wise Latina woman" can become US Supreme Court justice while a smart Hispanic man who passes his firefighter's exam has to fight all the way to the Supreme Court to have his test results validated.

Posted by: James FP | July 16, 2009 6:36 PM

Right, Lance, Sotomayor TOTALLY twisted the precise wording of Title VII. We all know it says, verbatim, "Frank Ricci must get a promotion." As for PRLDEF, Manhattan DA Morgenthau was a founding member of the Board. I suppose he must be a self hating white man? Or maybe he actually, you know, believes in civil rights.

And Count, Mr. Vargas had to take his case to the Supreme Court because, like it or not, the written law and judicial precedent were not on his side, so he needed the highest court in the land to change that. That's how our system works.

Posted by: REALLY | July 19, 2009 9:31 PM

PEOPLE ,POOR LANCE .. DOES NOT WASTE A CHANCE TO ATTACK OBAMA.OR SOTOMAYORHE SAYS OBAMA HATES HIS 1/2 WHITE .AND SOTOMAYAR SUPPORTS HERENA .HE SAYS HE LOVES HIS WHITE SELF.THATS GREAT LANCE.YOU DO NOT BELIEVE ANYONE OTHER THAN A WHITE MAN IS QUALIFY FOR A JOB OR HIGH POSITION AND YOU DONT WASTE A CHANCE TO PUT A MINORITY DOWN, ......THANK GOD FOR AFFIRMITIVE ACTION AND ANY EXISTING LAWS PROTECTING MINORITIES ,BECOUSE WITHOUT THEM IN PLACE,RACIST EMPLOYERS WOULD PASS UP QUALIFIED CANDIDATES WITHOUT ANY FEAR OF GETTING IN TROUBLE.LANCE ILL TELL YOU SOMETHING THAT HOLDS TRUE TO EVERY RACE AND YES WHITE PEOPLE TOO.THERE ARE SMART,DUMB,FAT,SKINNY,GOODLOOKING,UGLY,QUALIFIED,UNQUALIFIED,RICH,POOR,GOOD AND BAD PEOPLE IN ALL RACES....

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