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High Court Overturns Ricci: Bad News for Sotomayor?

Obama's nominee for the Supreme Court will now be forced to answer questions about her views on affirmative action.

by
Clarice Feldman

Bio

June 30, 2009 - 12:09 am

Today, the Supreme Court decided (pdf required) that New Haven violated Title VII of the Civil Rights Act of 1964 in refusing to promote firefighters who’d passed an objectively written and fairly administered exam because no minority firefighters made the grade.

The case, Ricci v. De Stefano, is an important one in the dossier of the president’s nominee for the upcoming vacancy on the court, Sonia Sotomayor, who, while on the Second Circuit, joined the majority in the now reversed opinion.

Undoubtedly the Obama administration was hoping to have the pendency of the Ricci case before the Supreme Court to use as a barrier, blocking her from responding to any questions about her views on affirmative action. But today’s decision makes it unlikely she can continue to hide behind that excuse. It’s now settled law, and she is free to discuss how she interprets it and whether she would agree to uphold it after having taken a contrary position.

Briefly, Judge Kennedy wrote the 5-4 opinion while concurrences were filed by Judge Scalia and Chief Justice Roberts.

Kennedy’s opinion can be fairly summarized as this:

We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause. …

In other words, there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.

Justice Scalia asks whether we cannot just move on already from the whole issue of racial quotas and simply rely on the constitutional guarantee of equal treatment. And Chief Justice Roberts is critical of the dissent’s manipulation of the facts, noting under no theory of the case could the city prevail under any points of relevant law:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent we re accepted, affirmance of the decision below is untenable.

I think it fair to say that unequal treatment to achieve equal results, as opposed to fair treatment in which the outcome (racial parity of some sort) is irrelevant, is not what most Americans prefer; they want a level playing field, not the distribution of blue ribbons by racial makeup. Therefore, I have no doubt that today’s decision will strike a welcome chord for most voters.

A very recent Quinnipiac Poll bears this out:

American voters say 55 – 36 percent that affirmative action should be abolished, and disagree 71 – 19 percent with Supreme Court nominee Sonia Sotomayor’s ruling in the New Haven firefighters’ case, according to a Quinnipiac University poll released today.

More than 70 percent of voters say diversity is not a good enough reason to give minorities preferential treatment in competition for government or private sector jobs, the independent Quinnipiac (KWIN-uh-pe-ack) University survey of more than 3,000 voters finds.

It provides employers with a countervailing obligation and will make unfair treatment to achieve such parity for the sake of diversity as risky as deliberately rigging tests to achieve a desired but unfair result.

What impact will this have on the Sotomayor nomination?

Some people like Kenneth Duberstein, who was Ronald Reagan’s chief of staff, thinks the hearings will have a major impact on how the voters will measure her fitness for the post and may affect her nomination.

“The hearings are fundamental because America really tunes in on that opening day to see whether the person can handle the pressure, and to listen to her personal story and the way she responds to questions,” he said. “That is the make-or-break day.”

Arlen Specter disagreed:

In an interview, Sen. Arlen Specter, D-Pa., who presided over the confirmations of Justices John Roberts and Samuel Alito as the Republican chairman of the committee, was even blunter about the hearings. “Oh, they’re not too important,” he said sarcastically. “The only thing that’s at stake is whether she gets on the Supreme Court.”

There is no doubt that prior to the announcement of the Ricci decision, the panel would be terribly circumscribed in questioning Sotomayor about her views on affirmative action which led her to join in the now reversed opinion. They are freer now to ask more direct questions. And prior to today, her chances of confirmation were insurmountable.

Sotomayor’s views are at odds with those of most Americans, and the panel is now free to highlight that fact and remind the voters that one more vacancy in the majority of this panel under the Obama administration and we will be certain to revert, however covertly, to racial and ethnic bean counting. This may put some Democrats who might have been willing to go along with the nomination unwilling to do so, provided they are subject to a great deal of constituent pressure.

For those like Justice Ginsburg, who are enthusiastically in favor of a Hispanic or another woman judge on the court, let’s remind them of Justice Ginsburg’s own words in support of the lower court’s decision in Ricci:

[T]he white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion.

Clarice Feldman is a retired litigation lawyer who lives in D.C. She's a news junkie addicted to the internet.
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