August 04, 2009

Stuart Taylor: Sotomayor Not Bound by Precedent in Ricci

Stuart Taylor's latest column should put to rest the argument put forth by Sotomayor and her supporters that, despite being overruled 9-0 at the High Court and despite six of her fellow 2nd Circuit judges voting to hear the case en banc, Sotomayor was bound by 2nd Circuit precedent in ruling against Ricci.
"Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit. ...

Even assuming for the sake of argument that the Sotomayor panel's decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, which seems to me to suggest that she was satisfied with the ruling.

There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended. ...

The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own."

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