June 29, 2009

Supreme Court Decisions Bad News for Sotomayor

CFJ Executive Director Curt Levey on the implications of today’s Supreme Court decisions for the Sotomayor nomination:

Two of the Supreme Court’s decisions today – ruling that New Haven unlawfully discriminated against white firefighters and ordering reargument on whether “Hillary: the Movie” violated campaign-finance laws – are bad news for Sonia Sotomayor. Both decisions focus attention on aspects of her record and nomination, discussed below, that she and the White House would prefer we forget about. Adding to Sotomayor’s woes, on Friday, James Maloney petitioned the Supreme Court to review Judge Sotomayor’s controversial Second Amendment decision in Maloney v. Cuomo, thus highlighting that controversy as well (More on Maloney v. Cuomo).

All three cases remind us of serious concerns about Sotomayor’s nomination to the Supreme Court. While senators are back home this week for the July 4 recess, we hope their constituents will raise these concerns with them.

Ricci v. DeStefano (New Haven firefighters)

Today’s outright reversal of Judge Sotomayor’s Second Circuit decision in Ricci, which allowed the city of New Haven to throw out a promotional exam on which minority firefighters scored relatively poorly, will haunt Sotomayor’s nomination for several reasons that go beyond her being on the wrong side of the law.

1) The Supreme Court’s ruling that New Haven unlawfully discriminated against its white firefighters reminds the public both of the dark side of the affirmative action policies Judge Sotomayor supports and of the fact that Sotomayor is, by her own admission, “the perfect affirmative action baby.”

Sotomayor credits affirmative action with getting her into Princeton University and Yale Law School. And affirmative action – specifically President Obama’s focus on finding a Hispanic woman to put on the High Court – obviously played a role in her recent nomination. Nonetheless, Obama has tried to have it both ways, claiming credit for nominating the first Hispanic to the Supreme Court and “present[ing] Sotomayor’s race and gender as credentials in themselves” (Boston Globe), while simultaneously denying that she was chosen for any reason other than merit. The Globe article adds that
“In effect, Obama connected Sotomayor’s life story to the subject of her most controversial case [Ricci] … [T]he narrative connection between a candidate chosen from a list of women, touted for her race and hailed for her willingness to make gutsy decisions – who also happened to weigh in against white firefighters – created a story line that has dominated her nomination.”

Moreover, the politics motivating New Haven’s decision highlights the ugliness of the racial spoils system behind many of the nation’s affirmative action programs, and reminds us of the demands from Hispanic and women’s groups that resulted in Sotomayor’s nomination. National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor explains:
“Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a ‘political ramification’ if they certified the exam results. Kimber was a key vote-getter for [New Haven] Mayor DeStefano.”

2) The Supreme Court’s reversal of Judge Sotomayor focuses attention on ties between her Ricci decision, favoring Hispanic and black firefighters, and her racially divisive remarks.

In her speeches, Judge Sotomayor has repeatedly stated that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male.” At the same time, her speeches endorse legal theories that view impartial interpretation of the law as enabling white male domination. Did Sotomayor’s out-of-the-mainstream racial theories lead her to eschew impartial interpretation of civil rights laws in her Ricci decision?

Stuart Taylor thinks the answer may be yes. In a column earlier this month, Taylor wonders if “her decisions may be biased by the grievance-focused mind-set and the ‘wise Latina woman’ superiority complex displayed in some of her speeches.” He concludes that “close study of her most famous case only enhances my concern.”

3) The Supreme Court’s decision reminds the public that Sotomayor and two of her Second Circuit colleagues tried to bury their Ricci decision and prevent the white firefighters from attaining Supreme Court review, probably to avoid the legally and politically embarrassing reversal that occurred today. More generally, Sotomayor’s repeated pattern of burying controversial decisions seems to confirm the contempt for the rule of law evidenced in her speeches.

A New York Times article explains what Sotomayor and her colleagues did in Ricci:
“Almost everything about the case of Ricci v. DeStefano … suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion. … [Instead] [t]he appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court … The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.”

Stuart Taylor explores Sotomayor’s motivation:
“[The 2nd Circuit panel] 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.”

Taken by itself, one can only speculate about Sotomayor’s motives in giving short thrift to the white firefighters’ claims. However, it turns out that Sotomayor has a habit of burying important but controversial decisions. Sen. Jeff Sessions, the Ranking member of the Judiciary Committee, explains:
“[Sotomayor has] provided a breathtakingly short amount of analysis when confronted with novel and important constitutional questions. … These truncated opinions also suggest a troubling tendency to avoid or casually dismiss difficult Constitutional issues of exceptional importance. Other examples of this [in addition to Second Amendment cases] may include the New Haven Firefighters case … and the Fifth Amendment case, Didden v. Village of Port Chester.”

4) Now that the Supreme Court has reversed Sotomayor’s Ricci decision, rather than remanding as many had predicted, her rationale for declining to discuss the case has vanished.

Given today’s decision, Sotomayor will be questioned extensively about her Ricci decision at her Judiciary Committee hearings, in written follow-up questions, and in any additional meetings with senators. Here’s a suggestion for a question:
Judge Sotomayor, you have said that the richness of your Latina experiences make you a better judge. While you served on the board of the Puerto Rican Legal Defense and Education Fund, it sued New York City, claiming that promotional exams for police officers had an adverse impact on blacks and Hispanics. Did that experience, and any empathy you may have felt for the minority officers, influence your opinion in Ricci v. DeStefano or otherwise lead to a better decision than a white judge would have made?

Citizens United v. FEC (“Hillary: the Movie”)

Sotomayor’s passionate advocacy, while serving on the federal bench, for greater regulation of campaign finances has called into question her judicial ethics and her ability to impartially decide campaign finance cases. But before today, it was anyone’s guess as to when such a case might come before her on the Supreme Court. Now it looks like this potential problem will become a reality in the very near future. The Supreme Court’s decision today to rehear Citizens United v. FEC, a challenge to the McCain-Feingold campaign finance statute, this September 9 means that Sotomayor will hear the case if she is confirmed by that date.

This problem of judicial ethics arises primarily from a Suffolk University law review article written by Sotomayor while she was a federal trial judge. In it, she rails against the lack of campaign finance regulation. As Politico describes it,
“[Sotomayor} forcefully defended the policy motivations behind such [campaign finance] restrictions, questioning the line between campaign contributions and ‘bribes,’ calling on Congress to overhaul campaign finance laws … and blasting the Federal Election Commission [the appellee in Citizens United] for not enforcing existing laws. … [Conservative election law attorney James Bopp says the article shows] that ‘she’s bought into the most extreme campaign finance reformer rhetoric. And considering that she has on occasions extolled the legitimacy of policy preferences guiding judicial decisionmaking, including her own, you’ve got to take her personal policy preferences seriously.’”

Ask yourself whether Sotomayor sounds more like a politician or a judge here. Then ask yourself if a citizen challenging campaign finance reform in the Supreme Court could have confidence that she would impartially decide the case. The answers explain why Sotomayor’s remarks run afoul of Canon 2 of the Code of Conduct for United States Judges, which states that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” It appears that Sotomayor does not fully comprehend the all-important difference between her role as a political activist prior to 1992 and her role as a judge since then.

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