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Ricci Decision Provides Rallying Point for Opposition

By Jerry Markon and Michael D. Shear
Conservatives are jumping all over today’s Supreme Court decision that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, using it to attack high court nominee Sonia Sotomayor’s earlier ruling against them.

But White House officials are fighting back, and they spent the morning reaching out to Senate Judiciary Committee members to make their case that the ruling should have little bearing on Sotomayor's nomination.

"The issue from the Sotomayor perspective is, does this call into question anything about her judgment? And it doesn't," said one senior White House official. "The majority made it clear they are making a new rule. No one has really questioned that she did what she was supposed to do.’’

The court overturned an earlier order that Sotomayor had endorsed as an appellate court judge, that upheld New Haven’s decision to throw out a promotion test it had given the firefighters when no African Americans and two Hispanics qualified for advancement. The 134-word order has been the flash point of much of the legal debate over Sotomayor’s nomination.

While it is unclear what affect, if any, today's decision will have on Sotomayor's ascension to the high court, Sen. Charles Schumer (D-N.Y.), a senior Judiciary Committee member, said the ruling "in no way undercut" her prospect for confirmation. The committee will begin confirmation hearings July 13.

In a conference call with liberal legal scholars, Schumer argued that Sotomayor and her colleagues on the U.S. Court of Appeals for the 2nd Circuit had followed four decades of labor law precedent. "The 2nd Circuit's opinion was clearly in the mainstream,'' Schumer said.

At a minimum, however, the decision provides an unwelcome distraction from what had seemed like a relatively smooth confirmation process for Sotomayor, and it opened up a renewed line of assault for conservatives.

They wasted no time today in using the decision to paint Sotomayor as a liberal judicial activist.

“The Supreme Court decision repudiating Judge Sotomayor’s legal position in this discrimination case raises important questions about Judge Sotomayor’s judicial philosophy,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. He encouraged senators to explore “the nominee’s views on judicial activism” and her views of the Constitution at the confirmation hearings.

Wendy E. Long, counsel to the conservative Judicial Confirmation Network, issued a statement saying that the firefighters “who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas.’’

Casting the decision as a repudiation of Sotomayor, Long added: "Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

White House officials had put in place a plan to deal with the ruling, which they clearly expected. One of their planned talking points was to point out that retiring Justice David H. Souter, whose slot Sotomayor would take, joined the dissent in backing her ruling.

"I think its going to be hard for people to explain why this really should be a confirmation issue for her," the senior White House official said.

Washington Post staff writer Paul Kane contributed to this item.

By Paul Volpe  |  June 29, 2009; 12:04 PM ET
Categories:  Docket , Supreme Court  
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Comments

Trying to Paint Sotomayer as a Racist will be the downfall of the GOP, Again and More.

Just more crap from the (Faux Liberal) Conservatives trying to prevent that Florida Family let his Wife die in peace.

YET lie about WMD and murder a million people in the Middle East.

BUT name sure their kids avoid a DRAFT.

Fei Hu

Posted by: Fei_Hu | June 29, 2009 12:52 PM | Report abuse

The decision was 5-4, not 9-0, judge Souter whom Judge Sotomayor is replacing agreed with her position, the bottom line is there is no difference between the 2 of them. Judge Sotomayot, should be and will be confirmed.

Posted by: jacaver | June 29, 2009 12:54 PM | Report abuse

The decision was 5-4, not 9-0, judge Souter whom Judge Sotomayor is replacing agreed with her position, the bottom line is there is no difference between the 2 of them. Judge Sotomayot, should be and will be confirmed.

Posted by: jacaver | June 29, 2009 12:54 PM | Report abuse


Exactly! There was no repudiation.

Posted by: lostinthemiddle | June 29, 2009 12:58 PM | Report abuse

This is silliness taken to an absurd extreme. Since when has 100% allegience to a current Court's ruling been a prerequisite for becoming a Justice? Never has, never will be. The conservatives "rallying" to this "victory" must believe their supporters are really stupid.

Posted by: hoos3014 | June 29, 2009 12:59 PM | Report abuse


Occasionally, justice prevails.

Guys took a test. Some passed. Promotion yanked.

Posted by: amt4321 | June 29, 2009 1:00 PM | Report abuse

Pretty disingenuous given that the Conservative members of the S.Ct. played judicial activists today in ignoring the clear precedent established in Griggs v. Duke Power.

As J.Ginsburg stated...this opinion and order will not long stand.

Posted by: anarcho-liberal-tarian | June 29, 2009 1:04 PM | Report abuse

After President Obama is able to replace one of the conservative justices, this ruling would have been 5-4 in the opposite direction.

Obviously, there was a true question of law here. I guess if the conservatives want to look at this case, they'd also have to look at Justice Thomas's only dissent in the student strip-search case last week. Obviously if you disagree with the majority, you're not suited to be on the Court. What an absurd argument that would be.

Posted by: amaikovich | June 29, 2009 1:04 PM | Report abuse

Voting in favour of the firefighters was Judge Thomas, who last week stated that there is nothing wrong with strip searching a 13 year girl for 400mg ibuprofen. (Didn't his hearings bring out his proclivities?)

Posted by: edlharris | June 29, 2009 1:06 PM | Report abuse

The thing that saddens me is that Oboma deliberately chose this woman because he knows she is a racist who will support reverse discrimination.

Posted by: maphound | June 29, 2009 1:10 PM | Report abuse

The only thing the conservative "assault" against Sotomayer will do is to turn even more Hispanics against the GOP.

Posted by: Gatsby1 | June 29, 2009 1:24 PM | Report abuse

If better job offer for Scalia's son was on the offering, he would have voted the other way and ruling from lower court would not be reversed.

Corrupt judges are biggest threat to the rule of law.

Posted by: SeedofChange | June 29, 2009 1:25 PM | Report abuse

President Obuma should have had a cow over the ruling as he advocates reverse discrimination. He has shown all of the people that he intends to make race a complete issue his entire time in office. He will continue to add raciest and minorities to every office available. His clear path is to make white people Pay for what our fore fathers had done to them. He has total disregaurd for the constitution and American Law. This reversal was justice for the fire fighters that took the test provided to them and passed now promote them. For once justice has prevailed.

Posted by: ticklewiskers | June 29, 2009 1:29 PM | Report abuse

So now disagreeing with Scalia and agreeing with Ginsberg = poor job performance?

Here is my idea of poor job performance: Republicans railing against the first ever Hispanic supreme court justice, losing millions of votes from the fastest growing demographic, and for what?

Sotomayor will still be confirmed.

Posted by: Ibleedburgundy | June 29, 2009 1:30 PM | Report abuse

The right wing should give us a name of a Federal Appeals Court Judge not revered by the Supreme Court.

It seems the present "activist" supreme court made new law today.

The right wing should have denied Sotomayor "when we cared".

Posted by: COWENS99 | June 29, 2009 1:38 PM | Report abuse

LATINA SUPREMACIST SPANKED BY SUPREME COURT

Sotomayor, a self proclaimed serial Latina Supremacist, is SPANKED by the Supreme Court for her judicial opinion condoning more discrimination against the firefighters.

Sotomayor has REPEATEDLY made statements such as this in 2001:

"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."

If Sotomayor had been white, and made a statement about despicable White Supremacy, she never would have been nominated.............. and EVERYONE in DC KNOWS it.

Posted by: JaxMax | June 29, 2009 1:46 PM | Report abuse

Beyond all of the Right and Left stuff I'd just like to say that most of these guys are making over a 100,000/year with great benefits and great pensions and my understanding is that none of them are geniuses or Einsteins. And don't say "it's a dangerous job" because construction workers, electricians, etc. have just as tough and dangerous jobs with not nearly the benefits and pensions (but possibly the pay). Therefore, we should at least expcet EVERYONE to ace this friggin stupid Basic Skills Test - black, white, asian, etc. The people who couldn't pass this stupid test should be fired. Nonetheless, today I believe Justice Prevailed.

Posted by: Tom22 | June 29, 2009 1:46 PM | Report abuse

EVERY TIME YOU HEAR "WHITE SUPREMACIST"

and are disgusted, and physically queasy,

Remember, Sotomayor is a self proclaimed "LATINA SUPREMACIST":

Posted by: JaxMax | June 29, 2009 1:47 PM | Report abuse


The Roberts Supreme Court reversed a decision *Roberts* had made less than a year before his nomination!

It happens all the time, people! The Appeals Court is supposed to APPLY the existing precedents. Only the Supreme Court should be SETTING precedent.

And don't get me started on *Sotomayor's* opinion. She concurred with two other judges, and she didn't write the opinion.

Posted by: mikeinmidland | June 29, 2009 1:49 PM | Report abuse

I would hope Obama will pull Ms Sotomayor's name from the Supreme Court list. If Obama does not, then I wonder if he is trying to split this nation apart by race???

Posted by: ednasmith | June 29, 2009 1:52 PM | Report abuse

The GOP has made themselves completely irrelevant. Who cares what they think?

Posted by: martin6 | June 29, 2009 1:54 PM | Report abuse

Somehow I cannot get enthused about Sotomayor or upset by Republican attacks on her. There is every indication that she is more conservative than Souter. Obama played politics with her gender and ethnic background, but there were many better choices that met these two conditions.

Posted by: Desertstraw | June 29, 2009 1:55 PM | Report abuse

Southern Whites and Faux news have already split this nation apart by race; therefore, Obama doesn't need to.

Posted by: lcarter0311 | June 29, 2009 1:56 PM | Report abuse

@ anarcho-liberal-tarian

I think you misremember the Griggs v Duke Power case. The following is from Wikipedia, but can be confirmed by checking other sources: "The Court found that under Title VII of the Civil Rights Act, if such tests disparately impact ethnic minority groups, businesses must demonstrate that such tests are "reasonably related" to the job for which the test is required. Because Title VII is passed pursuant to Congress's power under the Commerce Clause of the Constitution,..."

1) There seems to be no question that the test was "reasonably related" to the job.

2) I'm not sure how Title VII applies, since the city is not engaged in interstate commerce. But as I am not an attorney, I can be way off base here.

3) Is there a reason that the number of people scoring high enough for promotion should be directly proportional to the races of those taking the test? Have we ever been told how many firefighters of each race took the test as well as the number of each race that scored high enough to warrant promotion?

4) What factors influenced the outcome? Well, for one thing we know that some of the white firefighters studied very hard to master the material that might be tested. Have we any information on what sort of preparation members of any other race put in?

5) Did those scoring the tests know the race of the person whose test was being scored?

6) Would people's attitude to this case have been different if the issue had been related to gender rather than race?

I don't know whether justice was done by the Supreme Court; I do believe that right was done.

Posted by: argus4 | June 29, 2009 2:00 PM | Report abuse

If [CLARENCE THOMAS] had been white, and [HAD THE SAME MEDIOCRE RESUME], [HE] never would have been nominated.............. and EVERYONE in [THE FREE WORLD] KNOWS it.


Posted by: koolkat_1960 | June 29, 2009 2:05 PM | Report abuse

A SMALL VICTORY FOR FIREFIGHTERS......

a GIANT LEAP for race neutral justice.

SOTOMAYOR-the self proclaimed LATINA SUPRMACIST

Posted by: JaxMax | June 29, 2009 2:06 PM | Report abuse

Look Sotomayor wil get in but this was a horrible decision.. throwing out a test because people of the race a city wanted to pass didn't. Politically this is great news for Republicans (and there hasn't been much lately) I'd say about 70 to 80% of people supported the fire fighters and now Democrats have to show support for the decision Sotomayor made.. which was against them. This is a winning issue for Republicans they should play it up as long as they can...

Posted by: sovine08 | June 29, 2009 2:07 PM | Report abuse

Judicial activism is the Supreme Court stepping in to settle the 2000 Presidential election. The FL issue was and still is a state issue. After that activism, no conservative should ever utter the phrase 'judicial activism'.

Posted by: kinsman_bob | June 29, 2009 2:28 PM | Report abuse

The conservaturds are, like Adam Ant said, desperate, but not serious.

She will be confirmed, and we can all pray the right will slit their wrists.

Posted by: Garak | June 29, 2009 2:30 PM | Report abuse

The Supreme Court should be a conservative body.Someone has to ride herd on all the libs crazy ideas.

Posted by: FLvet | June 29, 2009 2:35 PM | Report abuse

*snort*

Of course they are... they seem to forget that other judges were involved in that decision-- and that it was unanimous one at that.

Posted by: jromaniello | June 29, 2009 2:43 PM | Report abuse

Please just read Justice Ginsburg's dissent opinion.

It is clear that at best the majority is creating a new test different from past Supreme Court decisions, and at worst, is engaging in "judicial activism" by ignoring Congress' repudiation of its Wygant decision. Were Justice O'Connor still on the Court the decision would most likely be 5-4 the other way.

Bottom line is that New Haven, with a dismal history of past discrimination, and a 60% Hispanic and African American population, will continue to be served by a fire department whose supervisors are almost entirely Caucasian, unlike Bridgeport, a few miles away, where different testing and weighting has resulted in a better balance.
Roberts, Alito, Scalia, and Thomas, no doubt see this as a just result. Kennedy is just an author of an intellectually dishonest opinion that ignores the multitude of facts that justify New Haven's decision to find a fairer selection process.

It is a sad day for civil rights!

Posted by: brlaub | June 29, 2009 2:49 PM | Report abuse

Conservative interest group opposition to Sotomayor won't stop her confirmation, and they know it. But they fight the fight to raise money now and awareness over the long term in the hope of rallying enough support to swing either the Senate or (preferably) the White House (or both) back to the Republicans before the time comes to replace Kennedy, Scalia, or Thomas. If one of those three leave the court during a Democratic presidency, the opposition from conservative interest groups will become full-fledged hysteria.

But if the Democrats hold things together for the next 15 years, as I suspect they will in the face of a shrinking, disorganized Republican party, nothing these group can do will stop the court from going 7-2 away from them.

Posted by: Gallenod | June 29, 2009 2:54 PM | Report abuse

These conservative Republican-appointed justices are far more activist than any appointed by Democrats. They create their own laws in the face of precedent.

Posted by: JohnnyU2Berry | June 29, 2009 2:57 PM | Report abuse

This decision is a clear victory for judging by the content of character rather than some race based formula. It's time in America to stop asking people's race - it doesn't matter.

Posted by: sarno | June 29, 2009 2:59 PM | Report abuse

"Conservatives wasted no time today in renewing their assaults on Sotomayor as a liberal judicial activist."

Instead of "assaults," I think "opposition" would have been a more accurate, and less of a biased, word.

Posted by: joedoc1 | June 29, 2009 3:05 PM | Report abuse

Trying to Paint Sotomayer as a Racist will be the downfall of the GOP, Again and More.

Posted by: Fei_Hu
*************************

I complete agree. The SCOTUS ruled on purely ideological grounds, with the usual 5 carrying the day. The more the GOP hammers on Sotomayor on this, the more they cement themselves as the irrelevant party of old, white men.

The issue in this case was never the legitimacy of test results; it was and is instead a question of what rights a city has to enforce its own provisions that are demonstrably designed to promote equitable policies.

By parading the "victory" of the white (and yes, two Hispanic) firefighters, the GOP seems careless of reinforcing image we have that it mostly cares about issues from a white male perspective. Additionally, it seems to me that in trumpeting that Sotomayor was "wrong" on this case, it's easily observed that that is true only for the most conservative members of the court. Were this case to have been decided 7-2 against, then, yes, you could ask pointed valid questions about her reasoning. But, as it stands now, all she really has to do is respond, "Respectfully, Senator, many members of the current court agreed with my reasoning. I think it stands soundly on its own merits."

Posted by: abqcleve | June 29, 2009 3:08 PM | Report abuse

You conservatives are so ignorant. Sotomayor's decision has nothing to do with whether she thinks this is a case of "reverse discrimination". It has to do with FOLLOWING THE LAW AND PREVIOUS LEGAL PRECEDENT. Suddenly all you conservatives seem to want ACTIVIST Judges. Well sorry, but it looks like Sotomayor will be the kind of judge that follows the law and previous precendents.

Posted by: BlakeVa | June 29, 2009 3:11 PM | Report abuse

It is obvious that the only acceptable candidate for a SC Justice is someone in lock-step agreement with Scalia. Obama should just ask him to make the choice.

Posted by: daweeni | June 29, 2009 3:20 PM | Report abuse

...I'd say about 70 to 80% of people supported the fire fighters and now Democrats have to show support for the decision Sotomayor made.. which was against them. This is a winning issue for Republicans they should play it up as long as they can...

Posted by: sovine08
**************************

That would be 70-80% of WHITE PEOPLE, who now comprise a minority of the population. This may look like a winner to the base, but will not work well with the majority of Americans who question whether the GOP is capable of representing anyone other than white folks. Even Senator Graham acknowledged yesterday on Face the Nation (or whichever one I was watching him on) that the GOP needs to face its demographic realities and transform.

Crowing loudly about the conservative court ruling for white firefighters and against the Hispanic court candidate is a step backward politically, as well as judicially.

Posted by: abqcleve | June 29, 2009 3:22 PM | Report abuse

If you look at the decision - Justice Souter was with the dissenting justices - Sotomayor does not change the balance of the court. Please this case is just one of many - and BTW - she did not write an opinion about this case - she was one of 7 judges that voted to affirm the lower court - the conservatives yelling "gotcha" are ignorant.

Posted by: wcdev1991 | June 29, 2009 3:25 PM | Report abuse

Sotomayer Cases Reviewed by the Supreme Court

• Ricci v. DeStefano 530 F.3d 87 (2008) -- reversed 5-3

• Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)

• Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted ***

• Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0

• Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- Upheld 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)

• Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)

• Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)

Seems like a lot of the supreme court justices mostly agree that Sotomayer isn't up to snuff as a supreme justive.

Posted by: rickshawjim | June 29, 2009 3:30 PM | Report abuse

argus4 - that's the difference between you and I. I am an attorney who has studied civil rights law aka Title VII.

If you're really a conservative you should be screaming bloody murder about judicial activism right now. The 14th Amendment gives Congress the power to alleviate discrimination. Griggs is S.Ct. precedent the 5 conservative justices ignored today. You may like the outcome, but that doesn't make it right or the legally correct decision.

Posted by: anarcho-liberal-tarian | June 29, 2009 3:30 PM | Report abuse

Why bother to comment...it will just get deleted.

Posted by: hoos3014 | June 29, 2009 3:32 PM | Report abuse

Some Latina supremist-racist. One of the plaintiffs was hispanic, genius.

Posted by: crestthree | June 29, 2009 3:35 PM | Report abuse

argus4 wondered how this is a interstate commerce issue (no disregard meant to the post) ... to clarify, interstate commerce is a very nebulous area that affects just about anything. one could reasonably assume, for example, that the fire department might, at some point, have to respond to an incident @ or affecting a company in New Haven that does business across state lines (which is just about any business). therefore, the dept. is also affected by the same clauses.

as usual republicans like to trumpet sound bites; if the city had not taken pre-emptive action, it would have been subjected to the lawsuit from the black firefighters (which would have also carried dubious inclinations). still, i assume the decision simply vacates the city's action, forces them to accept the test results ... which then puts them right back to square one in providing an opening for the black firefighters. the only difference is a lawsuit by the blacks will have to show WHY the test was biased. if they can do that, then we'll really have a mess on our hands.

Posted by: gso-chris | June 29, 2009 3:39 PM | Report abuse

maphound talks about "reverse discrimination." I have heard this term used before, and I can only imagine that an idiot would use such a term. Discrimination is discrimination regardless of who is being discriminated against. It's not as if only non-whites can be the target of discrimination.

Posted by: leeduke | June 29, 2009 3:42 PM | Report abuse

Front page example of media/WPost bias in their choice of words for the link to this article:

"Conservatives Renew Sotomayor Assault"

Notice when its coservatives questioning someone, they are "assulting" them. When its liberals, they are merely concerned, pressing, or questioning.

How pathetic. WP is so in bed with OB. Clean up your act or you'll be next in line for a bailout!

Posted by: rdtshop | June 29, 2009 3:52 PM | Report abuse

Today's decision by the Supreme Court (you know, the one that voted George Bush in as president,except for the subsitution of the woman from Arizona with the very conservative 'new' Chief Justice)does a lot of harm to minorities in many organizations. A truly diabolical organization now has only to construct a very 'unusual' test with questions like "Who's the lead singer for Rascal Flats?" and then flunk anyone who doesn't know the answer. Then, with the support of this 'high court,' it can promote all of the whites it wishes to because, even though the test might have had a devastatingly disparate impact on 'certain groups' (as in non of them passed) we simply can't discriminate against the whites who passed. Throwing out a test which keeps out minorities is now a bad, bad thing. Why, it's reverse discrimation--unfair to the whites who passed the test for a promotion! Who cares that the results alone show the degree of bias and adverse impact! Can't you liberal wusses see that? And what about the 'hero' who brought the suit? He had the 'test material' read to him over and over, via audio tape, until he could probably recite it in his sleep. No wonder he managed to be among those who passed the test. Finally, since no blacks and only two hispanics passed the test, I have to ask how many persons from these two groups even took the test--and by how many times they were outnumbered by whites. If whites outnumbered blacks by, say, 25 or 30 to one, it shouldn't surprise anyone that only whites and two hispanics passed the test. Come on, conservatives! Put on your thinking caps and start constructing some 'really great' tests. Surely you can think of some questions that black candidates couldn't possibly answer (lead singer for Rascal Flats?). The court is ready and willing to support ya!

Posted by: cgray7daone | June 29, 2009 3:58 PM | Report abuse

In the third paragraph, there is a very basic mistake: it should read "effect" nor "affect".

Posted by: rmendoza13 | June 29, 2009 4:02 PM | Report abuse

Judge Sotomayor is in no way racist. In the New Haven ruling, the only thing she did was affirm that the city could discard the results of the test, following the law and precedent. It is the conservatives on the Supreme Court that are being "activist", in that they are ignoring prior law and precedent. Roberts, Alito, Scalia, and Thomas are just doing the bidding of the Republican party, to which they owe their positions. It is they who should be suspected of racism. After all, Thomas hates being black, hates his own race, and often rules in favor of the old white power elite. Roberts, Scalia, and Alito are all part of the old white power elite, and their votes will always be in favor of those who got them where they are today.

Posted by: Chagasman | June 29, 2009 4:03 PM | Report abuse

And my previous comment should have read "not" instead of "nor" :-)

Posted by: rmendoza13 | June 29, 2009 4:04 PM | Report abuse

let's hope the repugnauts fillabuster this dramatically, because in the last election they got 16% of the Hispanic vote. That is way to high.

Posted by: angriestdogintheworld | June 29, 2009 4:08 PM | Report abuse

I expect, when the Republicans perform their circus act at the confirmation hearings, that the nation will be completely disgusted by their antics.
We have SO many problems to contend with that to listen to the Republicans disparage and insult a woman with her experience will be a giant turn-off for the American people.

Posted by: cms1 | June 29, 2009 4:13 PM | Report abuse

Front page example of media/WPost bias in their choice of words for the link to this article:

"Conservatives Renew Sotomayor Assault"....
Posted by: rdtshop
********************

Judging from the hit piece released by the RNC today or comments from people like Hatch, who said, "The Second Circuit should have recognized the serious and unique issues this case raised and given it the thorough treatment it deserved." [Calling Sotomayor out by the circumlocution "The Second Circuit" does not diminish the harshness and inaccuracy of the condemnation.], I'd say the "assault" characterization is accurate.

or Stewart Taylor of "The Ninth Justice": "What's more striking is that the court was unanimous [sic] 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.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion."

or Wendy Long of the Judicial Confirmation Network, who said, "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."

Posted by: abqcleve | June 29, 2009 4:40 PM | Report abuse

I haven't heard one liberal deny that if a white nominee had made the racial statements which Sotomayor made repeatedly about white males they would be automatically disqualified from the supreme court.

There will be a backlash against this. What form it will take remains to be seen, but there will be a backlash and the worse the economy gets, the bigger the backlash.

Posted by: alstl | June 29, 2009 4:47 PM | Report abuse


No offense to either side, but I have long resented the patina of "perfection" placed on jurists in general and SCOTUS in particular.

People make and break laws. It is an imperfect process at best.

If neo-cons think they can use this to derail Soto, they have no understanding of how law works.

After all, if Congress wanted to, they as a body can "undo" many, many SCOTUS decisions through legislation. If the President wants to, he can ignore the rulings of SCOTUS, just like Bush did.

As for the fire fighters, it's as much unintended discrimination as it is just another inflexible municipality doing what it does best -- refusing to think.

Posted by: tony_in_Durham_NC | June 29, 2009 4:47 PM | Report abuse

60% of Sotomayor's decisions have been overturned. Sotomayor's coworkers describe her as a bully, and the case just decided by SCOTUS was sent by Judge Cabrones who was on the court with Sotomayor when she practiced reverse discrimination. He was furious and wrote a dissent. Being "the first" at any job is far less important than being fair and reasonable. In this so-called "wise latina" person, her racism prevents her from good judgement. No one is guaranteed a lifetime appointment, no matter what race.

Posted by: drzimmern1 | June 29, 2009 4:54 PM | Report abuse

Fascism is alive and well among the self-righteous, right-wing religious, fundamentalist American Taliban. The conservative movement in America is dead, replaced by a neonazi zombie fringe of frothing-at-the-mouth and rabid undead. Otherwise, except for the horrible body odor attendant to their being undead, my neoconservative neighbors have shown themselves to be relatively inoffensive.

Posted by: tontosage | June 29, 2009 4:58 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. If everybody took the same test, and the city of New Haven cannot even say what was wrong with the test, the idea of throwing it out because the people who did pass were not of the "correct (or politically correct) race" is beyond ludicrous. Imagine replaying a football game over and over until the "correct team" won...

Posted by: dannyboy2 | June 29, 2009 5:16 PM | Report abuse

Another wrong decision by an activist conservative court. What more proof do we need that Sotomayor is needed on the bench than this bad decision? The idea that only blatant and overwhelming proof of racism can be considered compelling evidence is ridiculous. Everyone knows that racism and discrimination are still alive and well -- only practiced in a more subtle way with few fingerprints left behind. These conservative justices obviously do not live in the real world. Thank goodness this whole reverse racism nonsense is going to blow up in the GOP's face. The GOP grows smaller and less relevant by the day.

Posted by: zorro1x | June 29, 2009 5:27 PM | Report abuse

Sotomayor and the other judges (remember, it was a unanimous ruling) were not activist. The ruled that New Haven had the right, by law, to pull the test results. At the time the three judges sympathized with the firefighter, but were held by law to rule as they did. It is the judicial activists like roberts and alito who changed the law. Funny how conservatives never cry judicial activism when a ruling goes their way, like the time a judge voided Ollie North's conviction on a technicality. One must be a hypocrit to join the gop.

Posted by: mikel7 | June 29, 2009 5:28 PM | Report abuse


Not to nit-pick, but plenty of minority firefighters passed the test. Only the top 17 scorers would have gotten promotions, and those included one hispanic and no blacks.

I think New Haven was cowardly in trashing the results for fear of a lawsuit. But given the law, they were probably right that they would have been sued. And the Appeals Court properly applied the known precedents in the law.

The Appeals Court isn't supposed to make new precedent--which is why they left it to the Supreme Court to do so. Hence the unanimous decision at the Appeals level, and the closely divided decision in the Supreme Court.

Anyone who says Sotomayor has been diminished by this 5-4 decision has an axe to grind, and doesn't understand the roles of each of these courts.

If New Haven made a mistake, it was in putting too much priority on the test score as the only criteria for promotion. Once that was done, I think everyone acted properly. The SC decided it, and now we have new guidelines.

Posted by: mikeinmidland | June 29, 2009 5:32 PM | Report abuse

The court is more conservative now. It's not that surprising that they would create new precedent to weaken the CRA, and have to overrule several lower courts to do so.

Posted by: mason08 | June 29, 2009 5:35 PM | Report abuse

sotomayor:

If it looks like a racist duck and it acts like a racist duck and it quacks like a racist duck - it's definitely a racist duck.

And if it's a member of the racist la raza group, it should NOT have any position of responsibility in America.

NB: 60% of the rulings of this outrageously incompetent racist candidate reviewed by the Supreme Court have already been OVERTURNED. And now her absurd and racist decision against New Haven firefighters has also been overturned.

Posted by: LoonyLeft | June 29, 2009 5:37 PM | Report abuse

I just wonder how the SC ruling would have gone if it were Black firefighters who brought the suit. Alstl,still funny how you keep taking Sotomayor's Latina Woman quote out of context. You guys never read or admit to the rest of her statement. Of course, then you would have to admit you have nothing to say against her.BTW, I am sure there are many Latina women whose wordly experience is different from white men. As there are plenty of Black men and women and Muslims and Jews and Orientals.

Posted by: mikel7 | June 29, 2009 5:40 PM | Report abuse

Those trashing Sotomayor keep forgetting that this was not HER opinion, it was the UNANIMOUS opinion of a 3-judge panel. And she wasn't the one who wrote it.

If it was so far out, then you'd expect it to be a 2-1 opinion, or for her to have written a lone dissent. But she didn't.

The SC decision, being 5-4 along predictable lines, is much more indicative of a divided, activist court.

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

NB: 60% of the rulings of this outrageously incompetent racist candidate reviewed by the Supreme Court have already been OVERTURNED. And now her absurd and racist decision against New Haven firefighters has also been overturned.

==========

What's the denominator on the fractional representation of that percentage?

I ask, because the Supreme Court won't even take a case unless four of them feel the need to hear the case. The implications of this fact are left as an excercise to the reader.

Posted by: mason08 | June 29, 2009 5:52 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 5:53 PM | Report abuse

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.

====

1) It was an unclassified FOUO report.
2) This is the thing about Iran-Contra that upsets you?

Posted by: mason08 | June 29, 2009 6:05 PM | Report abuse

Ummm....it was a 5-4 decision..4 justices sided with Sotomayor's thinking..it is not a right or wrong thing, that's why it's called an opinion. The decision fell along ideological lines if you look at which sides the votes were cast. I suppose you could look at every justice on the court and find cases where their rulings were overturned by a higher court if not the Supreme Court. I hold nothing against Justice Alito or Justice Thomas if that was the case and they voted against Sotomayor's ruling this time. This has nothing to do with whether she belongs on the court or not. Let's get to the hearings and properly scrutinize her then...

Posted by: Rogie | June 29, 2009 6:13 PM | Report abuse

Anybody who knows about how the court system works knows this is a non-issue.

What about Supreme Court justices that are on the wrong side of a decision? (Which at some point they are).

It's just ridiculous.

We know judges that lower judges aren't gods, and that's why you can appeal to the Supreme Court. And the Supreme Court can be knocked out by Congress passing a law. And the SC can knock out law.

It's called checks and balances, and different opinions.

Posted by: camasca | June 29, 2009 6:21 PM | Report abuse

Your day has passed, neocons.

Your five activist justices tried to hold back the 21st Century today, in a last gasp.

But they will be replaced.

And your ideas and hatred of America will fail.

Posted by: WillSeattle | June 29, 2009 6:51 PM | Report abuse

I disagreed with Judge Sotomayor decision on the Ricci case. The test should not have been thrown just because too few minorities passed it. Their needs to be evidence of discrimination. That being said I do think that she should be confirmed. She is experienced, has a good legal mind and would be a strong counterpoint to the conservatives on the court.

Posted by: steven08817 | June 29, 2009 7:00 PM | Report abuse

It is not that Hispanics want Sotomayor.
Hispanics do not want someone on the Supreme Court who has had 60% of her opinions reversed.They want a judge who will represent them and show that there are intelligent,successful Hispanics who are out there doing a great job and whose legal decisions are not being mostly reversed.

It is a dirty litle secret of graduate schools and other Ivy League Law Schools
that they re-test affirmative action students until they get the right grade. A friend at Stanford from abroad was delighted when her papers and dissertation were written for her, and in the correct English grammar that she did not possess. She could not believe it!

I sat in on University of Washington meetings at a grad student lounge in one of the buildings and heard professors discussing a student who wanted to be a doctor but could not pass a pre-chemistry course and needed help in every other course.He was a black-non-Hispanic affirmative action student. They decided to take each question on the test, work out the answer with him and let him write it in when he got it right. The testing was done privately with the teacher. I was flabbergasted!. This "coddling" continued until he majored in pre-med with excellent grades. He is a doctor today making decisions about your health care.On the ther hand, I know other black students who
earned their grades and excelled.

There are Hispanics who have earned their grades. They have no chips on their shoulders. They know that they are excellent at what they do.It is time to allow excellent people to excel.

The man who studied and passed his test
has more merit than the fireman who did not study but was promoted on the basis of race. That is not America.

The test was administered and even a man with dyslexia who studied hard passed it. Sotomayor is a racist if she does not get that.She does not deserve to be at the Supreme Court

Get a Hispanic who is inteligent and without an agenda. One who is fit to rule on the case without a record of failure behind her (60% of her decisions reversed).

The president,it seems to me, has a prejudice against Hispanics. He wants to put someone who is an embarrassment to Hispanics (60% of legal decisions reversed!)on the Court.And by the way, why did Obama not release his transcripts from Columbia and his Law School? What is he hiding? Why is he not proudly displaying them?

Posted by: enoughnaivete | June 29, 2009 7:04 PM | Report abuse

promote whites only!

Posted by: dudh | June 29, 2009 7:16 PM | Report abuse

Does Wendy Long promote true false and multiple choice testing as a method to select supreme court justices? I only ask the question because she seems in love with the idea that New Haven used multiple choice testing to decide which person should be promoted to a life saving management position in a public safety profession. You would think a performance under pressure simulation would be better, but I guess multiple choice is a complex as some people can get.

Posted by: taxing | June 29, 2009 7:25 PM | Report abuse

Didn't four memebers of The Court dissent?
According to the rightwing assault on Soto, does this mean those four members should be impeached?

(oops, got rational for a moment there - sorry :))

Posted by: mmax | June 29, 2009 7:52 PM | Report abuse

"Does Wendy Long promote true false and multiple choice testing as a method to select supreme court justices?"

Interesting that you should ask. I really would like to know the LSAT scores for the Supreme Court Justices. All of them. But it would be even nicer to have their terms renewed every two year contingent on passing a test of cognitive skills. For instance, nearly 90 years old, John Paul Stevens is now thoroughly demented. His opinions are as farcical and poorly reasoned as they are unjust. Shouldn't there be a means to compel this elderly fool to step down? I doubt he could now pass a basic skills test required for graduation from high school. Likewise, Sotomayor's poor reading skills and limited reasoning ability, not to mention her odious temperament and racism, should be an extreme impediment to her being nominated to the Supreme Court.

Posted by: greg3 | June 29, 2009 8:03 PM | Report abuse

The White House: "The majority made it clear they are making a new rule. No one has really questioned that she did what she was supposed to do."

------------------------------------------

(Guffaw.) This is what is known as "making it up as you go along."

She's a judge. She was supposed to uphold the equal protection clause of the 14th amendment, and she didn't. This is really very simple stuff when you reduce it the basic issue of, "Is it okay to discriminate against one minority (whites are a minority in New Haven) on behalf of other minorities?"

Sotomayor said it was.

Posted by: theduke89 | June 29, 2009 8:05 PM | Report abuse

No matter how the Dems try to massage it it is bad for ms> Soto-Mayour to have ONE more judgement of Soto-Mayour's reversed by a higher court.

Posted by: sperrico | June 29, 2009 8:42 PM | Report abuse

Sotomayor is a member of La Raza - THE RACE - as if there were no other. La Raza promotes the marches, the crowds, the idea that illegal aliens, most of whom are from Mexico, should be given "rights" they don't deserve and amnesty. We saw what happened with the 1986 amnesty mess and now we have millions more illegal aliens in our country.

Posted by: Utahreb | June 29, 2009 9:19 PM | Report abuse

We need educated jurists on the Court, not some affirmative action mutt who barely passes, and who thinks that feelings and not the law should prevail.
She is just another liberal pretender, about like the phony incompetent who nominated her.
What a joke.

Posted by: LarryG62 | June 29, 2009 11:05 PM | Report abuse

First and foremost this court is already to political. Just is just and unjust is unjust. Discrimination is unjust, period...
This is not an issue of conservative vs liberal think tanking, this is a matter of social justice. I am sorry to hear Ms Sotomayor made an unjust decision? But if you want to consider racially motivated decisions this seems to be the cause of Ms Sotomayor's decision. And to be racial I do not believe Ms Sotomayor is of Spanish descent, unless Sotomayor is her maiden name, and "just one more thing"? Paraphrasing Columbo: What is Justice Ginsburg's maiden name? If a justice decides to make an unfair decision based on race, why not on relegion, etc. Get my drift?

Posted by: sasapienza | June 30, 2009 11:30 AM | Report abuse

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