Besides
the obvious reverse discrimination inherent in the Ricci case, many legal experts (including Supreme Court Justices) are
troubled by the reasoning expressed by Judge Sonya Sotomayor and her fellow
panel judges.
Here
are links and excerpts from several journals and news sources on the subject:
National
Review
The decision is a sharp rebuke for Second
Circuit Judge Sonia Sotomayor, Pres. Barack Obama’s nominee to replace Justice
David Souter when the Supreme Court convenes in October. Justice Ruth Bader
Ginsburg filed a dissenting opinion that was joined by the Court’s three other reliable
liberals (Justices Stevens, Souter, and Breyer), and thus administration
spinners are already whirring about how the 5-4 majority purportedly shows that
Sotomayor’s handling of the case was in the mainstream. That rhetorical sleight
of hand, however, misstates both the facts and the nature of the complaint
against Sotomayor.
The only consensus the nine justices found
was that the handling of case by Sotomayor’s three-judge appeals-court panel
was shoddy. Even the four dissenting justices agreed that the Second Circuit
applied the wrong legal standard. The majority was less charitable, rehearsing
the machinations by which the lower courts tried to bury the firefighters’
discrimination claims: While conceding evidence of intentional discrimination,
a district judge disposed of the claims in an unpublished order, which
Sotomayor’s panel then rubber-stamped in an unpublished summary order of its
own. That maneuver prompted a withering protest from Second Circuit judge Jose
Cabranes, a highly respected Clinton appointee, who was startled at his court’s
cavalier treatment of such profound legal issues.
National
Journal
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.
The
Wall Street Journal
Because the Court's ruling was narrowly
made on statutory grounds, it dodged the larger claim brought by the
firefighters that New Haven violated their constitutional right to equal
protection. Yet as Justice Antonin Scalia notes in his concurrence, the
disparate impact standards "place a racial thumb on the scales, often
requiring employers to evaluate the racial outcomes of their policies, and to
make decisions based on (because of) those racial outcomes." Someone
should ask Judge Sotomayor if that's her idea of equal protection under the
law.
The
Washington
Times and Politico
also report.