Why did President Obama nominateJudge Sonia Sotomayor to fill Jusitce David Souter’s place on the Supreme Court? Because she gave him the requisite affirmative action points (female and ethnic minority)? Yes. Because she has shown in her opinions as an Appellate Court judge precisely the sort of judicial triumphalism that he himself favors as a means of enacting social policies he likes but the people, and the legislatures of the country, are less than keen about? Yes again. But her crowning qualification, the item that tipped the scale in her favor was what he referred to as her “experience”: not her judicial experience, I hasten to add, but her up-from-the-barrio experience as the daughter of poor immigrants from Puerto Rico. Quoth Obama: “Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers . . . is a necessary ingredient in the kind of justice we need on the Supreme Court.”
Is it? What “kind of justice” do you suppose that is? The justice, I mean, dispensed not by someone who just happens to have grown up poor and who has achieved his present position by dint of “overcoming obstacles” but rather someone whose judicial philosophy sits upon a giant chip on his shoulder labeled “redress”–what then?
While you ponder that, consider the story of New Haven fireman Frank Ricci. He also has had some notable life experience. Now 34, he grew up in modest circumstances. In 2003, when the New Haven fire department announced 15 lieutenant and captain vacancies, Ricci threw himself into concentrated study in preparation for the examination that the city would administer to determine — or so the candidates were told — who would get the promotions. Ricci had to study hard. He suffers from dyslexia. He had audio tapes prepared at his own expense so that he could master the material, a process that took months.
Result? Ricci achieved the 6th highest score out of 118 test-takers. Jubilation all around? Hardly. None of the 27 black candidates qualified for the 15 available slots. So, at the behest of the black chairman of the Board of Fire Commissioners, Rev. Boise Kimber, New Haven’s Mayor John DeStefano Jr. voided the test and said no one would be promoted. (Too-good-to-be-true detail: Kimber is a felon, a convicted embezzler and perjurer, and so cannot be a firefighter in New Haven; but in New Haven being a felon is now obstacle to becoming chairman of the Board of Fire Commissioners.) Thus the so-called “equal protection” clause of the 14th Amendment of the Constitution was once again employed not to further justice but to stymie it in the name of a desired politically correct result.
Ricci and some of his fellow test-takers sued. The federal district court found for the city. On appeal, a 3-judge panel, which included Sonia Sotomayor, affirmed the summary judgment against the firefighters in a one-paragraph opinion that simply affirmed the original judgment. This lack of response obviously did not sit well. When there arose a motion that the court hear the case en banc, “the panel withdrew its summary order and in June 2008 issued instead a unanimous per curiam opinion.”
In a stinging (if polite) dissent, Appellate Judge José Cabranes underscored the extreme oddity of the panel’s action.
It is arguable that when an appeal rasing novel questions of constitutional and statutory law is resolved by an opinion that tersely adopts the reasoning of a lower court — and does so without further legal analysis or even a full statement of of the questions raised raised on appeal — those question are insulated from further judicial review. It is arguable also that the decision of this Court to deny en banc review of this appeal supports this view. What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of review.
And so it came to pass. Writing a month ago in his syndicated column, George Will expressed the hope that the Ricci case might finally, at last, spell the end of “America’s racial spoils system.”
New Haven has not defended its implicit quota system as a remedy for previous discrimination and has not justified it as a way of achieving “diversity,” which can be a permissible objective for schools’ admissions policies but not in employment decisions. Rather, the city says that it was justified in ignoring the exam results because otherwise it might have faced a “disparate impact” lawsuit.
So, to avoid defending the defensible in court, it did the indefensible. It used anxiety about a potential challenge under a statute to justify its violation of the Constitution. And it got sued.
Chief Justice Roberts, Will notes, has had some tart things to say about about the “sordid business” of “divvying us up by race.” But with Sonia Sotomayor’s likely ascension to the Supreme Court, I fear that last progress in putting the politics of racial redress behind us will continue to elude our grasp. Frank Ricci may have had a compelling story of hard work and a noble effort to overcome obstacles. But his obstacles were not the recognized obstacle of race and sex, so they inhabit a lower rung on the long grievance chain that informs so much judicial activity today. Besides, Ricci is both white and male, so his claims to restitution are naturally low the great empathy stakes President Obama mistakes for the law. Is that “the kind of justice we need”?
PREAMBLE TO THE CONSTITUTION, suitably amended:
“We the People of the United States..do ordain and establish this Constitution…” leaving it to empathetic judges to tell us what we ordained and established.
In an ironic feature piece in the NYTimes today, Jim Dwyer writes about another case of dyslexia and test-taking presided over by Ms. Sotomayor — in this case, a woman claiming to be too dyslexic to take the bar exam sued for special treatment (and then won, and failed the exam anyway, or never took it). Dwyer thinks Sotomayor’s ruling in favor of this test-taker reveals her “fairness and empathy.” The law student, incidentally, was at the time a professor of education and law school graduate and is now a college dean, and the bar association’s defense against her disability claim was that she was faking her disability.
Would the judge have been so empathetic had the law student been a white male?
Selective empathy joins selective outrage in our courts.
I am convinced that the Sonia Sotomayor nomination can be easily defeated. Am I stark raving crazy? I don’t think so. Sotomayor does not believe that justice should be blind. Her views, perhaps unintentionally, are racist to the core. She does indeed argue that minorities and other alleged victims of white society deserve preferential treatment in a court of law. Have we already forgotten that the majority of voters in the liberal state of Michigan voted down an affirmation action ballot proposal? What should that tell you? The American people are mostly with us on these issues—as long as we possess the courage to clearly state our views. I should also add that the Republican establishment in Michigan sided with the pro-affirmative action activists! These folks normally get on the wrong side regarding issues that are racially and ethnically charged.
3. David Thomson:
I am convinced that the Sonia Sotomayor nomination can be easily defeated. Am I stark raving crazy? I don’t think so. Sotomayor does not believe that justice should be blind. Her views, perhaps unintentionally, are racist to the core. She does indeed argue that minorities and other alleged victims of white society deserve preferential treatment in a court of law. Have we already forgotten that the majority of voters in the liberal state of Michigan voted down an affirmation action ballot proposal? What should that tell you? The American people are mostly with us on these issues—as long as we possess the courage to clearly state our views. I should also add that the Republican establishment in Michigan sided with the pro-affirmative action activists! These folks normally get on the wrong side regarding issues that are racially and ethnically charged.
It’s a nice thought. Unfortunately, in our sound-bite society, whether she’s a reverse racist is largely in the control of the media. If Jon Stewart starts making jokes about her reverse racism she’s in trouble; unfortunately, he’ll probably find some Klansman who opposes her, make him the poster child for opposition to her appointment, and by inference accuse everyone who opposes her of racism. As far as I can tell, she’s pretty much a slam dunk, unless it turns out she beats her Latina maid, and underpays her, or something like that.
Would a SCOTUS Justice’s conspicuous failure to do equal justice to rich and to poor alike (per the Justice’s oath) be grounds for impeachment? Not that it would happen unless the GOP got hammer-lock control of the federal government, and maybe not even then, but the prospect might introduce some seriousness into some of the Justices on the Left.
To 2. Tina Trent
You got a link/more details about that case… that has epic win written all over it.
I’m a 17 year old white male and I’m applying for college in the fall and I think that it’s absolutly unfair that any lower qualified student should be accepted over me because of race and gender. Affirmative action is bullshit and unconstitutionall. When black people were freed from slavery Abraham Lincoln said that they were equal to white people. Why is it that now they have the advantage? Is it payback? Do they deserve affirmative action as additional reparations to a couple of generations of slavery? Again it’s unconstitutional and the founding fathers would have none of it
“As far as I can tell, she’s pretty much a slam dunk”
The odds are on our side. We only need a little courage. The MSM is no longer that powerful. And if we shy away from this fight—we might as well throw in the towel.
It will only embolden the leftists to increase their race card attacks in the future.
Underneath the conundrum of not enough jobs to absorb the population with its attendant preferential treatment is the question of job creation: who does it? Gung-ho statists will say the state, and it is true that there is a role of the state in this effort, but free-market advocates will reply that wealth-creation and job creation are primarily the business of the private sector, and will be enhanced when taxes are low and unions and entitlements are reined in so that they do not serve unhelpful ends.
If we do not address this division of labor between state sectors and private sectors (and we need both, but how?), there is no way out of the affirmative action mess, or of any other of the debates now on the table.
To “Robotech”: only this, the Dwyer article itself: http://www.nytimes.com/2009/05/27/nyregion/27about.html?_r=1
Promoters of entitlements due from slavery ignore biological facts. Each descendent of slaves resulted from the union of a particular sperm and a particular egg. For centuries slavery thoroughly scrambled procreative pairings from what they would have been without slavery. So, if not for slavery virtually no slave descendents alive today would ever have been born. Rather than reparations to slave descendents, it would make more sense for them to cut a check to their favorite former slave state.
All this talk of the wise Latina overcoming poverty is bunk. Her mom was a nurse so she had a solid middle class paycheck. In those days that was meant for a family of 4 so they had plenty of diposable income. On top of that they lived in city housing so their rent was very low. She is said to having been poor because all Puertoricans are supposed to be poor just like all Blacks live in the ghetto.This is the media story for you and everybody accepts it at face value. And what other great battle has the wise Latina won? Overcoming the fact that she has lived in the Latin neighbourhood.
Interestingly, the battalion chiefs and such who were brought into New Haven to administer the oral exams were, themselves, in the majority non-white.
And it was the minority-supported firefighters union that decided the written exam would count as 60% of the final, overall score.
Do you think that perhaps testing was put in place that might actually FAVOR minority firefighters? So why, then, did so many of them fail to make a high enough grade to earn a promotion but a dyslexic could do it?
Captain’s exam
Blacks: 3/8 passed (38%)
Whites: 16/25 passed (64%)
Hispanics: 22/41 passed (54%)
Lieutenant’s exam
Blacks: 6/19 passed (32%)
Whites: 25/43 passed (58%)
Hispanics: 34/77 passed (44%)