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Obama SCOTUS Choice a Blow to Racial Equality

Sonia Sotomayor appears to doubt the fundamental premise of our government: that "all men are created equal." (Also read Roger Kimball: “Life Experience, Affirmative Action, and You.")

by
Jennifer Rubin

Bio

May 27, 2009 - 12:06 am
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And this outlook extends beyond a single speech. This philosophy has permeated her work as a dogged advocate for racial preferences on campus and as an appellate judge as well. She played a critical role in the New Haven firefighter case (Ricci v. DeStefano) which makes clear her views on racial discrimination. In that case she voted with the majority of the Second Circuit to reject the claim of Frank Ricci, a white, dyslexic firefighter, who struggled for a top grade on a promotion exam, only to have the test thrown out because no African Americans achieved a top score.

Sotomayor did not merely vote against Ricci’s claim. Taylor explains that after the district court dismissed Ricci’s claim, Sotomayor did her best to nix his claim — and then to also foreclose his opportunity to appeal the case:

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both. …

So were the three 2nd Circuit judges who heard the initial appeal, including Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court. The three-judge panel initially deep-sixed the firefighters’ appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.

Then the Circuit’s more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote.

Her actions raised the ire of her colleague Jose Cabranes (a Clinton appointee) who questioned why Sotomayor’s panel had issued its initial “perfunctory” opinion with no mention of the hot-button constitutional issues which were clearly germane to the case. The case is now before the U.S. Supreme Court. Court watchers at the oral argument opined that the Court seemed ready to reverse the Second Circuit’s decision and thereby deal a blow to Sotomayor’s scheme to deprive Ricci of both his promotion and his day in court.

Even Richard Cohen, hardly a conservative, suggested (before Sotomayor’s nomination) that Ricci is a test of sorts:

Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules — oops, you’re white. Sorry, not what we wanted. As a consequence, it was not racists who were punished but all whites. There is no need to cling to such a remedy anymore. There is, though, every need to retain and strengthen anti-discrimination laws, especially in areas such as fire departments, where racial discrimination was once endemic. Sufficient progress has been made to revert to treating individuals as individuals. After all, it is not some amorphous entity called “whites” who will suffer: It is un-lieutenant Ricci.

[. . .]

Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of race. Obama’s Supreme Court nominee ought to be able to look the New Haven fireman in the eye and tell him whether he has been treated fairly or not. There’s a litmus test for you.

Ricci highlights then two troubling aspects of Sotomayor’s judging: a contempt for colorblind equality and a view that the rule of law is simply an inconvenience to be sidestepped on the road to some grander vision of social justice (presumably one which doesn’t entail judging citizens according to the content of their character).

So rather than chase down the many strains of Sotomayor’s questionable jurisprudence or bemoan the fact that she offends conservative sensibilities in so many ways, conservative activists and Republican senators would do well to focus on two issues. Does she believe in the rule of law?  And does she believe in equality — that is, the right to be judged according to one’s merit and adherence to the view that race does not determine one’s intellectual ability or moral value?

If there is any possibility the answer to either is “no” then the Senate should — indeed must — reject her nomination.

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Jennifer Rubin blogs at the Washington Post.
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