Tag Archives: Ricci

Judicial Nominee Sparks Debate on Racism, Discrimination

By Marc Seltzer; originally published on July 13, 2009 at politicsunlocked.com

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As the hearing on Judge Sonia Sotomayor’s nomination to the Supreme Court commences, there is a great focus on whether Judge Sotomayor is biased. This reflects more the nations’ prejudices than it does any real question about the judge. She has been on the bench for sixteen years, and there is little informed concern about the impartiality of her decisions.

The Ricci decision, in which she rejected claims by Hispanic and white firefighters in favor of the city of New Haven’s effort to aid African American firefighters, clearly does not show a bias towards her Hispanic cultural identity. Her decision followed federal law, which allowed cities such as New Haven to take remedial efforts where discrimination was argued or perceived. In concert with other federal judges, she deferred to Congress in its lawmaking and the city in its application of the law. While a five-member majority of the U.S. Supreme Court reversed her decision last week and provided a new authority for lower courts, this hardly paints her as either biased or activist.

Her comment, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” has also inspired a strong reaction and many questions regarding her perspectives on race and gender.

News reports about her judicial temperament showed her to be no-nonsense, tough, smart, detail-oriented, and fair. Even those on the losing side held her in high regard. Some critics have harped on her toughness on lawyers appearing before her as a negative aspect, which reminds me of a very tough senior federal judge I have often appeared before. He sometimes berated lawyers and their arguments and had no tolerance for the unprepared. In my experience, I went out of my way to make sure I was ready for every hearing, and I was nervous in my uncertainty about how each hearing would go. But I did not question his capacity for the job because he was particularly demanding.

Judge Sotomayor’s comments off the bench do raise questions about the role of personal characteristics such as gender, race, religion and culture in judging, but do not create real issues about her capability or about the nature of her judicial philosophy. Justice Sanual Alito said essentially the same things that Judge Sotomayor has said – noting the impact of his Italian heritage and experience as an Italian American on his judicial outlook – without raising an eyebrow. When this kind of sentiment is expressed by a white male, it sounds “cultural,” like a tribute to our shared melting-pot cultural identity. But when the same ideas are expressed by a minority voice, it raises the concern in some of reverse discrimination as if minorities given a voice must necessarily use it in a power grab.

After a period of being attacked, without the opportunity to respond, the hearings will be Judge Sotomayor’s forum to speak. Republicans have noted that while they cannot seriously expect to thwart Sotomayor’s confirmation, they can use the hearings as a platform to argue judicial philosophy. As their criticism so far has been off the mark, it is likely that it is they who will receive a schooling in the Senate.

Supreme Court Reverses Sotomayor Panel in Ricci Case

By Marc Seltzer; originally published on July 8, 2009 at politicsunlocked.com

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The Supreme Court recently overturned an opinion issued from a three-judge appellate panel including Supreme Court nominee Judge Sonia Sotomayor. The core of the case turned on how a government agency, in this case the city of New Haven, Connecticut, should deal with potential discrimination against minority employees.

The city took a number of steps to address concerns about discrimination in promotions for fire department officer positions, such as making great efforts to create a race-neutral test and ensuring that minority officers from other departments participated in the candidate evaluation process. The lawsuit arose when the city decided to throw out the results of the firefighter promotion exams because no African-American applicants achieved top scores, meriting promotion.

The Supreme Court decision sheds some light on how government entities are expected to handle discrimination concerns. However, it does not fit as nicely into the affirmative action debate as commentators claim. It also fails to provide any significant evidence against Judge Sotomayor’s promotion to the U.S. Supreme Court.

It was white and Hispanic firefighters who sued the government in Ricci v. DeStefano when their success on the exams was disregarded. They lost their case in the lower courts and petitioned the Supreme Court for a final review. The Supreme Court found that once the promotion exams were completed, the city needed evidence that the exam was discriminatory, beyond just the results themselves, to justify disregarding those results. This, the city did not have. It had a history of discrimination, where only one of 21 fire captains was African-American, and it had a fear of lawsuits from unsuccessful black candidates, a legitimate concern recognized in the law guiding cities’ decision making on employment matters, but it did not have evidence that this test was unfairly discriminatory.

The Supreme Court decision was 5-4, with Justice Anthony Kennedy writing an opinion joined by Justices Scalia, Thomas, Alito and Chief Justice Roberts. The decision does not seem to overturn much law on affirmative action or to allow discrimination against minorities to go unchecked. It does say that once a hiring process is completed and candidates are ranked for promotion, it should not be upended without evidence that it was faulty.

The dissent would have allowed the city to disregard the test results in light of past discrimination and suspicion and potential legal challenges over the results themselves. There was evidence that another type of exam process might have yielded different results and the dissenting opinion considered that sufficient to put the test results into question and justify the city’s action.

Judge Sotomayor, along with two other appellate judges, had agreed with the trial judge that the city was within its rights to redress what it perceived was a problem in the test results. Justice Sotomayor will be asked about the decision in the nomination hearings next week. However, her position was hardly the type that should concern the judiciary committee reviewing her nomination. Sotomayor followed existing law on an issue where there is obviously substantial disagreement.