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Firefighters' Case Shouldn't Haunt Sotomayor

By Eva Rodriguez

Make no mistake about it: The case of Ricci v. DeStefano will come back to haunt Obama Supreme Court nominee Sonia Sotomayor. In a fair world, it wouldn't.

A sharply divided 5-4 Supreme Court this morning overruled a decision issued by Sotomayor and two colleagues on the New York-based federal appeals court. Sotomayor upheld New Haven, Conn.'s decision to throw out tests for leadership posts in its fire department. The city took the action after test results showed that only white or Hispanic firefighters scored high enough to qualify for promotion; under this test, no African-American firefighters made the grade.

Yet New Haven had almost no choice but to take a second look at the test because of Title VII, a federal law that, among other things, requires employers to question the fairness of employment actions that appear to have had an adverse or "disparate impact" on minorities. When New Haven decided to ditch the test and hold off on promotions, it was sued by white firefighters who claimed they were being discriminated against merely because of their race. A federal trial judge sided with New Haven, saying that it acted properly under federal law and that it would have certainly been sued by African-American firefighters had it decided to certify the lop-sided test results. The appeals court panel on which Sotomayor sat summarily affirmed the lower court judge in a surprisingly brief one-paragraph ruling.

I think it was a mistake for Sotomayor and her colleagues not to have issued a fully fleshed-out decision explaining their rationale for backing New Haven. I think such an approach was called for in a case that presented novel issues not squarely addressed before by the Supreme Court. In fact, six members of the New York appeals court argued for a rehearing so that the full-court could tackle the case; the remaining seven members of the court voted down that option, essentially standing behind the panel's handling of the matter.

Critics of Sotomayor, whose confirmation hearing is scheduled to begin July 13, have jumped on this case to hammer the Supreme Court nominee. They allege, among other things, that she rubber-stamped the trial court in order to bury this hot-button case and that her vote in the case shows her pushing forward her agenda for identity politics. These allegations are unfair and not grounded in fact.

The New York appeals court has adopted fairly quirky rules that have allowed for a good number of "rubber stamp" decisions on otherwise weighty cases. Plus, Sotomayor did not act in this case alone; six other judges on the court agreed to adopt the trial court's logic without need of publishing an extensive appeals court decision. I would have sided with the judges who wanted to rehear the matter, but there is no evidence that Sotomayor voted the way she did in order to hide the ball or secretly advance a political agenda. Critics should stop making such charged assertions unless they have facts to back them up. I'm still waiting.

By Eva Rodriguez  | June 29, 2009; 2:50 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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it shouldnt come back to haunt Sotomayour expect for the fact that the decision dovetails nicely with her own explination of what she think she brings to the table as a decision maker.

perhaps it wouldnt be this way if she and her benefactor hadnt repeatedly made reference to vague, seemingly irrelevant, and thus totally incomprehensible models for good decision making--latina life experiences and empathy.

if you want people to know where you stand, dont speak cryptically.

any grief she gets for this case is the not undeserved consequences for having a career that has been and is currently advanced through the trading in such trendy but ridiculous (for many reasons) notions.

Posted by: dummypants | June 29, 2009 3:45 PM | Report abuse

This nominee's record makes no difference whatever to Republicans. They are united in attempting to defeat her nomination as they are united in their attempt to see that this Presidency fails.
They are interested in one thing, and one thing only: their own consolidation of power in the United States. Luckily, a shrinking minority of citizens go along with them.

Posted by: cms1 | June 29, 2009 4:30 PM | Report abuse

The Supreme Court ruling was predictable and predicted. The margin and the members individual votes were just as predictable and predicted.

Posted by: sauerkraut | June 29, 2009 4:43 PM | Report abuse

Thank God there is still a little common sense left on the Supreme Court. Scary that the decision was 5-4!
Now watch how our liberal media (CNN, ABC, CBS, NBC) and newspapers (Washington Post and NY Times) will portray this as a bad decision made by a bunch of stodgy old conservatives. Sure hope Stotomayer can be stopped from joining the Supreme Court, but doubt it.....

Posted by: dannyboy2 | June 29, 2009 4:57 PM | Report abuse

It's not a bad decsion. It's just one that is not based on current precedent. That's the perogative of the Supreme Court. You probably know it by another name, however...

Posted by: mason08 | June 29, 2009 5:42 PM | Report abuse

"I think it was a mistake for Sotomayor and her colleagues not to have issued a fully fleshed-out decision explaining their rationale for backing New Haven."

That really is the problem. I personally don't agree with her ruling, and am relieved by today's subsequent reversal. Her failure to explain what would obviously become a controversial decision is disconcerting. However, as much as I may disgree with her I don't believe one decision to be a disqualifying event, and hope she learns from the experience that she can draw upon after she is confirmed, as she should be.

Posted by: iago1 | June 29, 2009 5:50 PM | Report abuse

Who is Patrick Leahy, who defended Sotomayor's bad decision?

Leahy earned the nickname “Leahy the Leaker” because of his leaks of sensitive intelligence data.

In a 1985 he disclosed classified information that had enabled the Egyptian government to capture the Arab terrorists who had hijacked the Achille Lauro cruise ship and killed an American citizen. Leahy’s indiscretion may have cost the life of at least one of the Egyptian operatives involved in that capture.

In 1986 Leahy leaked secret information about a plan by the Reagan administration to overthrow Libyan dictator Muammar Qadhafi. A few weeks later, details of the plan appeared in The Washington Post, and the operation was cancelled.

In 1987 Leahy was forced to resign as vice chair of the Intelligence Committee after leaking classified information about the Iran-Contra affair. It was considered to be one of the most serious breaches of secrecy in the Committee's history.

Posted by: sagereader | June 29, 2009 5:55 PM | Report abuse

The ruling didn't have an adverse or "disparate impact" on all minorities, just some minorities. That Hispanics were able to compete with White applicants disproves minority bias in the test itself and was a correct ruling. Objections can then only come from those that believe some minorities are more equal than others.

Posted by: slim2 | June 29, 2009 6:18 PM | Report abuse

The Role of "Judge Per Curiam" in CONTROVERSIAL APPEALS.

Judge Per Curiam, is not a real person at all. The term 'per curiam,' technically means of, by or for the court and the Opinion is then usually drafted by the Clerk of the Court, who is always a lawyer.

Earl Davis, Esq., a former Lawyer of the Year on multiple occasions with the Trial Lawyers Association for DC, once said:

When an opinion is potentially either so controversial, or so screwed up by the trial court's rulings below, and the appellate judges just don't have the balls [no pun in Sotomeyer's case] to sign the Opinion, they conjure up their famous ghost writer, 'Judge' [sic] Per Curiam, who drafts the Opinion for them and issues it as a Per Curiam Opinion.

Earl also noted that if a lawyer is faced with a 'per curiam' precedent, they should pull the court record & jacket below, to witness first hand what disaster confronted the Judge, so they can distinguish it as a precedent in argument.

There are other times where appeals are taken, often by criminal defendants lawyers under the Criminal Justice Act because the defendant demands an appeal. Many state appellate courts require a certerori petition these days, where no or little merit appeals are denied cert., which is also further appealable in some instances.

For those where appeals are largely as of right, but of little merit, a Per Curiam opinion can issue there also.

Thus since this case was clearly bound for a US Supreme Court petition for cert. that would likely get granted ON A VERY CONTROVERSIAL ISSUE, the hearing panel likely said as little as possible.

WILL THAT COME BACK TO HAUNT SOTOMEYER ? Probably not as badly as if they had written a full blown opinion that got reversed.

Posted by: | June 29, 2009 6:33 PM | Report abuse

Why is that Democrats insist that decisions people have made should not inform us as to the person in question. We've been told to ignore that Obama attended a questionable church, to ignore that he gave very little to charity, to ignore his connections to dubious figures, even to ignore his voting record! Now you're telling us to ignore that Sotomayor made a decision based on RACE and that she's been overturned by her peers. Thank you, but some of us live in the real world Eva, and are capable of coming to our own conclusions, based on facts, not fantasy.

Posted by: motownlivs | June 29, 2009 7:13 PM | Report abuse

Four Supreme Court justices agreed with Sotomayor on this case, so I seriously doubt this is evidence that she is unfit for the SCOTUS.

However, the larger issue is that she favors preferences based solely on someone's race, which flies in the face of the 14th Amendment. Someone really needs to ask her whether she agrees with the Equal Protection Clause in its pure form. Sotomayor is simply on the wrong side of history -- and the wrong side of the Constitution.

Posted by: diehardlib | June 29, 2009 7:27 PM | Report abuse

So apparently we scrapped the Constitution and effectively decided, based on the New Haven case, that the five sitting Republican appointed justices get to decide if Judge Sotomayor can join them-even though she and six other 2nd Court of Appeals judges followed existing SCOTUS precedent. Sounds like a healthy dose of Palin Logic to me.

Posted by: BBear1 | June 29, 2009 7:32 PM | Report abuse

Of course it was a bogus decision. I doubt any judge anywhere has not issue a few bombs. One decision does not a trend make though. The R's need to show a trend of bad decisions.

Posted by: modman | June 29, 2009 8:35 PM | Report abuse

The controversy in response to this decision reflects, in part, the contradictory contents of the civil rights law itself, and the chaotic nature of precedents as a guide to court action. Precedents can be abundant, not always consistent, and difficult of interpretation to new cases with new nuances and details.

Congress would help future courts by writing clearer laws with less ambiguity. State and local governments will face fewer legal challenges if their own ordinances are clearly written and if they validate tests before using them. As for future impact, the ruling's message is also that when minorities do achieve high scores on application tests, their superiority will be honored. In the present case, those not chosen--whites and blacks--needed to study harder. Most applicants failed to be chosen regardless of their ethnicity.

Posted by: Marvinlee | June 29, 2009 8:35 PM | Report abuse

"However, the larger issue is that she favors preferences based solely on someone's race, which flies in the face of the 14th Amendment. Someone really needs to ask her whether she agrees with the Equal Protection Clause in its pure form. Sotomayor is simply on the wrong side of history -- and the wrong side of the Constitution.

Posted by: diehardlib"

Agree. Sotomayor is not just on the wrong side of the issue, but sought to obscure any reason she had for nailing the whites and hispanic FF candidates with the rubberstamp ruling. Then when colleagues said "reconsider!" important civil rights issues are in play, and listed them, saying the matter was clearly going to SCOTUS and they best say something to justify their Appeals Court ruling, Sotomayor and her two fellow judges refused. The height of arrogance. Then when members of the court said they had to have an enbank ruling of all 13 judges, Sotomayor and her two fellow judges, hoined by 4 other liberals, again voted to bury it and affirm the rubberstamp.

The problem most people have is that you want the best people for the job, and after written exams and oral boards, you had a clear ranking of those candidates with a good job record and evaluation of superiors they were eligible to try and become officers. And officer is a whole different job than being an engine driver, ambulance medic, or "hose-humper".

As a volunteer firefighter for 9 years, and a former military officer, I know two things:

1. The firefighters officers exams are careerist, entirely work-related. The oral boards are brutal, a video of one showed examiners running through entire fire disaster scenarios, multiple car accident scenarios, building code questions, management of a screwed-up employee for 1 hour 15 minutes without let-up.

People's lives are on the line, and the better your officer, the lower the inherent risk to both crew and civilians. And impact to all town and industrial fire insurance rates.
You no more want to proclaim that a "70" is OK and half of examinees are "equally qualified" thus can be apportioned by race, gender, class......than you want to proclaim that 7 million kids with B averages and 1100 SAT scores are "equally qualified" to get into Harvard, Cal Poly, or MIT - so performance is valued less than "Blessed Diversity". If you take that approach, anyone that strives to become adept and learning and thinking who gets an A+ average and 1580 SATs would be a foll for wasting his or her time studying so hard.

Posted by: ChrisFord1 | June 29, 2009 8:56 PM | Report abuse

She is replacing Souter and her opinion seems to have been in agreement with Souter's. Hard to see why that decision should "haunt" her.

Posted by: hithere2 | June 29, 2009 9:20 PM | Report abuse

It will take a while to flesh out what the "wise Latina" gloss on the constitution will be. It'll be interesting to follow, at least. I suspect it will closely resemble standard liberalism. Though, she will probably be a little more vigilant on issues concerning latinos. Though, there were latinos who passed the promotion test, here. Perhaps that they were not female was the determining factor.

Posted by: cletus1 | June 29, 2009 10:20 PM | Report abuse

Liberals are typically selfish, spoiled children. They want what other people have, but they don’t want to actually work for it. It’s much easier to throw tantrums and demand the “right” to share in what others have earned. Because of this outlook, most liberals bask in a perpetual state of imagined victimhood. Nothing is their own fault, and every woe in their life is caused by “society”... by “other people”... by “fat-cats” and “corporate greed”... and, of course, by "white people".

Posted by: mock1ngb1rd | June 30, 2009 12:35 AM | Report abuse

It most certainly SHOULD haunt her. It's been well established that she views people as groups, not as individuals, and her mindset is the last thing we need on SCOTUS.

Ms. Rodriguez's best argument seems to be "well, six other judges ruled the same way." Those six aren't SCOTUS nominees, and Sotomayor shouldn't be, either. Anyone who could have ruled the way she did in this case is so hell-bent on race that it's unreasonable to assume that it isn't part of that person's agenda.

Sotomayor's defenders make me sick, almost as sick as Sotomayor herself makes me. Ms. Rodriguez is no exception. She knows very well that a rehearing of the case at the appeals level would have led to the same decision, so her attempt to sound fair and objective rings very hollow.

No sale, Ms. Rodriguez. Sotomayor would be a disaster on SCOTUS.

Posted by: Skvoznyak | June 30, 2009 1:03 AM | Report abuse

Or prehaps that was a message from those on the right sitting on the Supreme Court?

Maybe they know that she won't be sittling idle by like Clarence Thomas, and will argue a strong case against those on the right

I thought Michael Steele was an embarrassment to the Black American Race

But he doesn't even come close to that "Judas Thomas"

Lord Lord Lord

Why did the most incompetent hair-brain former President (Bush) got to pick two?

Scalia, Roberts, Alito and Thomas scares the bi-gettles outta me!

Repeal the law that says a Supreme Court Judge get to sit until they retire or die

Posted by: danson1 | June 30, 2009 1:06 AM | Report abuse

You latinas stick together . I do think your column is better than any of those white guys that work there though .

Posted by: borntoraisehogs | June 30, 2009 1:07 AM | Report abuse

While New Haven may need to find a way for minority candidates that fail the exam to get promoted, that isn't a reason to NOT promote persons otherwise qualified. The business of fighting fires and supervising the people doing the job doesn't cease while politicians squirm about possible lawsuits.

Posted by: hdc77494 | June 30, 2009 1:30 AM | Report abuse

Maybe oral boards are the real issue here. Many perfectly qualified people respond poorly to that type of interview, and personal subjectivities become part of the equation whether conscious or unconscious. Municipial unions are much like private unions. People promote their friends, and descrimination occurs.

Posted by: hdc77494 | June 30, 2009 1:36 AM | Report abuse

Hey, senorita, in a "fair world" the firefighters shouldn't have been forced to take their case to the Supreme Court in order to find justice in the first place. The fact that you applaud the close 5-4 decision speaks eloquently to the fact that the Court is just another political operation...therefore the concern of adding an obvious partisan is cause for concern.

Posted by: ddnfla | June 30, 2009 3:02 AM | Report abuse

Baloney!!! She has stated several times she is wiser than WHITE males,not just males or black males or hispanic males
but WHITE males.If that is not racism,please explain to me what is.
According to people ,who have worked for
her,she is a BULLY ,so she certainly is not a shy violate ,so if she wanted to she could give her take on the white firefighterscase right now.
She braggs that she got into Yale, even though others were more qualified than she.
She is proud that she got in because of race.She should be ashamed of herself.
I am wondering ,who paid for her education?

Posted by: blakely1 | June 30, 2009 3:17 AM | Report abuse

"Sotomayor did not act in this case alone; six other judges on the court agreed to adopt the trial court's logic without need of publishing an extensive appeals court decision." True, but unlike those six she is a nominee for the Supreme Court. One would expect leadership and thoughtful independence of such a person, not just following the crowd.

Posted by: gmdim | June 30, 2009 4:50 AM | Report abuse

this spanish woman is not smart enough for the supreme court. can't the obamacons find someone smarter?

Posted by: jim000122 | June 30, 2009 7:16 AM | Report abuse

The fact that anyone thinks she's qualified to even be a judge shows that this country has issues. "Empathy" and "life experience" should have no bearing as far as upholding the law or the constitution.

The fact that she coudn't even muster an opinion yet gave a favorable ruling allowing the city of new haven bowing to liberal special interest groups shows she has no business being on the bench.

Posted by: mlandsjr | June 30, 2009 9:00 AM | Report abuse

The New Haven case will forever be a millstone around Sotomayor's neck, as she demonstrated she is an UNwise Latina rather than a fair American who could see BLATANT discrimination (against the dyslexic firefighter and his hardworking white and Hispanic colleagues) right in front of her face.

Posted by: mediaskeptic | June 30, 2009 9:18 AM | Report abuse

Does aynnnnnnnnnnnnnnnnnnnnnnyone know what the makeup f the court she sits on is made up of?I have a feeling the majority of he court is either hispanic or black,and if that is so, you have your answer to the decision.Birds of a feather flock together.

Posted by: elmerck | June 30, 2009 9:33 AM | Report abuse

If the court she is setting on now is made up of hispanic and blacks, then you have your answer.
and, she wil rule the same way ob the XCITUS.Ironic isn't, the way things work out.

Posted by: elmerck | June 30, 2009 9:38 AM | Report abuse

The Appeals Court ruled on the law, and they got it right given the law in effect at the time. The law has now changed--the Supreme Court can do that.

Sadly, the Supreme Court just legislated from the bench and undid a matter of settled law that has been in effect since 1964 (confirmed in case law since 1969, (Griggs v. Duke Power).

We now have four justices on the Supreme Court whose decisions can be reliably predicted without any knowledge of the facts, law or arguments in a case. Tell me what it's about, and I'll tell you how they will rule.

Posted by: rawebb1 | June 30, 2009 9:54 AM | Report abuse

Yesterday, the Supremes made new law. At ten o'clock one law was in effect. At 10:05 the same law had a different meaning, a meaning unrecognizable to the legislators who authored the original statute. Sotomayor was not overturned. The activist court of John Roberts wrote new law yesterday. Sotomayor and her brethren, acting in good faith, followed the law in existence at the time. The Roberts Court did not.

Posted by: davie163 | June 30, 2009 9:57 AM | Report abuse


I disagree with your sentiments. When Sotomayor said she was wiser than white males, she waasn't being racist. She was only defending her intellect.
I'm sure you are a white male. In today's society, whites have always and continue to be the yard stick by which other races, intellect, wealth,..etc are measured. So there is nothing wrong in Sotomayor just asserting her high opinion of herself. Look when you are a minority in this country, many people are quick to judge you as irrelevant, not very intelligent, the list just goes on.
Deal with it. You are just unhappy that a latina woman can be so accomplished.

Posted by: honesty1 | June 30, 2009 10:35 AM | Report abuse

One would hope that minorities would study and pass tests rather than depending on affirmative action/reverse racism to study for them.........

Sotomayor is an affirmative action product and as such supports similar racism to benefit "her side"....

Time to think as Americans instead of hyphenated Americans......

Posted by: georgedixon1 | June 30, 2009 10:35 AM | Report abuse

It seems the racists have come out of their dens to speak. Most Americans know what the Republicans are up to. Therefore, their whining about the New Haven case and its Supreme Court disposition is tainted. It is difficult to refrain from a vituperative response to those who see race, gender and national origin as significant factors in Sotomayor's judicial nomination. "Sit down and shut up!" wouldn't be a polite way to deal with racism and racists but, really, they should.

Posted by: banquet | June 30, 2009 10:36 AM | Report abuse

Right wingers! The founding fathers fought the revolutionary to get rid of them. We fought world war I & II to get rid of them. We had a historic election in 2008 to get rid of them. All to no avail. As long as they own and control all mainstream media,( Including a lot of the mainstream Blogs )they will continue with their poisonous comments. God help us! We can't seem to help ourselves.

Posted by: hiye50 | June 30, 2009 10:40 AM | Report abuse

"Critics should stop making such charged assertions unless they have facts to back them up. I'm still waiting." And waiting for how long - like ten minutes? :)

Posted by: rohitcuny | June 30, 2009 10:44 AM | Report abuse

What is obvious from the comments here is that few (if any) have read the actual opinions in this case and that few have an understanding of how the judicial process works.

This was not a decision based on large Constitutional issues, the majority says as much. Much like Bush v. Gore, this decision is a political one and, as far as it goes, applicable to this one case.

The issue isn't whether there was a disparate outcome, there was. The question was whether the outcome was foreordained by advantages the plaintiffs had over minority test takers in taking the test, whether intentional or not.

After the tests results were in, the New Haven government as constructed reviewed the test results and heard evidence on the issues and decided that there was reason not to accept the results.

The District Court heard the evidence and decided that there was enough evidence for the New Haven government to make the decision they made, as did the Court of Appeals.

The majority on the Supreme Court merely ruled on the written evidence (the court record) in the case and imposed the decision they would have made, had they been the trial court judge. The minority on the court ruled that there was sufficient reason for New Haven to trash the test. This is especially evident in Alito's (joined by Scalia and Thomas) rebuttal to Ginsberg dissent, which merely quibbles over the facts of the case and what judgments are to be drawn from them. Isn't it interesting that Roberts and Kennedy didn't join the rebuttal? Also interesting is Scalia getting three bites of the apple by joining the majority, the rebuttal, and proffering his own, separate concurrence challenging Section VII as a whole as unconstitutional.

Much of the majority opinion centered on the personal, how and much effort the successful "testees" expended (totally irrelevant especially without corresponding evidence of the unsuccessful test takers) and whether or not there was politics behind the decision to throw out the test (decisions made in the political process are by definition political and, thus an irrelevancy, especially at the Supreme Court level).

In this light, I find it funny that conservatives who normally abhor "activist judges" overruling duly constituted and elected officials in this manner proclaiming this a great victory. Irony, anyone?

Posted by: capemh | June 30, 2009 12:00 PM | Report abuse

Perhaps "in a fair world" the likes of so-called "journalists" like Ms Rodriguez would not attempt to impose their obvious and transparent agendas instead of ethically and honestly reporting.

In such a world, she would admit the plain truth that 20 firefighters who studied hard and passed their test for promotion then had it WRONGFULLY, and DISGRACEFULLY yanked out from under them--SOLEY--because they were the--->WRONG COLOR<---PERIOD!

Yet, she goes on to say with regard to any supporting facts that Sotomayor ducked her obvious duty to these honorable victims, she is "still waiting".

Yeah, me too.

Waiting for Ms Rodriguez to "SEEK TRUTH AND REPORT IT" per her own profession's Code of Ethics. Sotomayor did duck her responsibility as documented and as follows: "Judge Jose A. Cabranes, writing for himself and five other judges, dissented from the appeals court decision, noting that the panel’s ruling “contains no reference whatsoever to the constitutional claims at the core of this case” and added that “this perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

Is that clear enough?

BTW, here's another little fact:

Sotomayor has been overturned by the U.S. Supreme Court on 60 percent of her appealed rulings. In case factual numbers or percentages are confusing to Ms Rodriguez, that, in a "FAIR WORLD" is UNACCEPTABLE for the Supreme Court!

Posted by: artyanimal | June 30, 2009 12:23 PM | Report abuse

Being overruled by a 5-4 vote isn't exactly being stomped into the dirt. She's unqualified to be on the Court because only four of the current justices agreed with her instead of five?

Gimme a break...

Posted by: A_Reader | June 30, 2009 1:00 PM | Report abuse

When I took the NYC Learner's Permit test, I and another white were the only two people out of twenty, who passed the test. The remaining eighteen, all black, did not pass the test. The questions were all about the motor vehicle rules and laws, which a driver must know. When the black woman supervisor asked the people who did not pass the test, if they had studied the manual, she received answers such as, "I don't need to study no manual, I know how to drive.", "I studied while I waited on line.", "I don't have time to study manuals."
According to Sotomayer, I should have been denied a permit because some people refused to study the manual.
Frankly, I think this is the result of "social promotions" of students who don't really know how to read. It is also a result of low expectations.

Posted by: JEANNIEMAC | June 30, 2009 2:38 PM | Report abuse

if obama had nominated jesus the republicans would have a problem.going to get franken in soon and he is not going to be friendly with anyone on the right. cant blame him they ran a very dirty and slanderous campaign against him.probably going to lose bunning in 2012.the next nominee will be easier obama will probably have at least 3 more appointees before he leaves office.

Posted by: donaldtucker | June 30, 2009 3:17 PM | Report abuse

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