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Roger’s Rules

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”?

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