Later On

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When tests are unfair

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People do not understand that Sotomayor was following binding judicial precedent in her decision re: the firefighters. From the Center for American Progress:

Dividing along familiar ideological lines, the Supreme Court handed down a 5-4 decision in Ricci v. DeStefano yesterday, overturning 25 years of lower-court precedent that gave employers discretion to reconsider a promotion test whose results favor one race over another. Justice Kennedy’s majority opinion in Ricci creates new law; from now on, employers may reconsider an already administered promotion test only if there is a "strong basis in evidence" showing that the test engaged in illegal discrimination. Despite the fact that Sotomayor did nothing more than follow a binding precedent when she decided Ricci, conservatives are pouncing on Ricci as evidence that Sotomayor is unfit for the Supreme Court. Wendy Long of the right-wing Judicial Confirmation Network claimed that "Sotomayer’s" decision 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." The RNC claimed, falsely, that Sotomayor has been reversed in six of seven cases before the Supreme Court. (In reality, of the approximately 380 opinions Sotomayor has written as an appeals judge, the Supreme Court has reversed only five.) Although these attacks may be heavy on rhetoric, they are light on facts.

THE OPPOSITE OF ‘ACTIVISM’: According to a set of conservative talking points attacking Sotomayor, Republicans decided on the day of her nomination to paint her as an "’activist’ judge intent on making law from the bench, not interpreting law," and yesterday they stuck to that plan. Sen. Jeff Sessions (R-AL) proclaimed that Ricci "will only raise more questions in the minds of the American people concerning Judge Sotomayor’s commitment to treat each individual fairly and not as a member of a group." Minority Leader Mitch McConnell (R-KY) claimed that Sotomayor "allowed her personal or political agenda to cloud her judgment and affect her ruling." But these accusations are false. The truth is that in 1984, the Second Circuit decided a virtually identical case to Ricci, holding that employers have sweeping authority to reconsider a promotion test when minorities underperform white applicants. This 1984 decision was reaffirmed 10 years ago in Hayden v. County of Nassau. Whatever Sotomayor may have thought about the firefighters’ claim in Ricci, she was bound by these precedents obligating her to rule against those firefighters — as a lower court judge, she lacks the Supreme Court’s authority to roll back existing law. Indeed, had she ignored the law to reach the result Sessions and McConnell advocate, she would have engaged in exactly the kind of judicial activism her critics falsely accuse her of.

A PATTERN OF FALSE ATTACKS: Sessions and McConnell’s misrepresentation of the Ricci case is not an isolated incident. Indeed, every single substantive attack on Sotomayor’s record has rested on the bizarre claim that Sotomayor is a "judicial activist" because she refused to ignore a law that conservatives dislike. Republican vote suppression guru Ken Blackwell described her decision in Maloney v. Cuomo as a "declaration of war against America’s gun owners." But in that case, Sotomayor did nothing other than follow a binding Supreme Court precedent limiting the scope of the Second Amendment. Similarly, conservatives have called Sotomayor an "activist" for her refusal to create a new exception to the Voting Rights Act out of thin air, and for an eminent domain decision, joined by two George W. Bush appointees, holding that a property owner who waited too long to file his claim was bound by the same three-year statute of limitations that governs everyone else. Indeed, Republican claims that Sotomayor is some kind of "judicial activist" are so lacking in merit that a report by the non-partisan Congressional Research Service recently determined that "the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents."

THE REAL ‘ACTIVISTS’: Sotomayor may not be willing to twist the law to achieve political ends, but conservatives do not need to look far for the activism they desire. Since 1971, federal law has prohibited both intentional and unintentional race discrimination in employment. Although employers may use hiring practices that have an adverse impact on minorities so long as applicants are screened for their fitness for the job, employers who screen out minority applicants through arbitrary or irrelevant tests engage in illegal discrimination. Thus, federal law does more than just prohibit obvious race discrimination, it "smokes out hidden bigotry" by employers. Concurring in Ricci, however, ultra-conservative Justice Scalia departs from a quarter-century of precedent to claim that this ban on hidden discrimination may violate the Constitution’s ban on race discrimination. Moreover, Scalia’s view is echoed by a radical dissenting opinion handed down last week by Justice Thomas, who argued that a central provision of the Voting Rights Act is unconstitutional. So if conservatives like Sessions and McConnell truly believe that "judicial activists" are poisoning the legal system, they should look a lot closer to home than Sotomayor.

Written by Leisureguy

30 June 2009 at 9:42 am

Posted in Congress, Government, Law

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