December 12, 2008

Race Case & Obama

Today the U.S. Supreme Court considers a petition to review the Second Circuit’s decision earlier this year in Ricci v. DeStefano, in which New Haven, Conn. firefighters – one Hispanic and 17 whites – sued the city after the promotions they earned were denied under pressure from the city’s African-American leaders. The Second Circuit affirmed the denial. In addition to its legal importance, this case stands out because of its implications for both President-elect Obama and Sonia Sotomayor, one of his most likely Supreme Court picks. Don’t miss an excellent piece on the case by National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor (link below).

First, some details about the case. The plaintiffs are typified by Frank Ricci, who spent hundreds of hours and more than $1000 studying for the promotion exam and got a high score. But he didn’t get a promotion. New Haven threw out the test results because too few black firefighters scored high enough to earn a promotion. Never mind that the exams were expertly designed to eliminate the possibility of racial bias

The politics motivating New Haven’s decision highlights the ugliness of the racial spoils system behind many of the nation’s affirmative action programs. Taylor explains the Chicago-like politics behind this case:
“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, who had made the minister chairman of New Haven's Board of Fire Commissioners despite his 1996 felony convictions.”
New Haven politics may soon impact national politics. Taylor explains:
“If the Court grants the petition, the now-obscure case will vault to the top of the nation's racial policy agenda, presenting a tough issue not only for the justices but also for President-elect Obama. He could come under great pressure to take a position for or against … what many voters – and, I would guess, five justices – would see as a raw racial quota.”
In his famous Philadelphia speech about race, Obama acknowledged the when "working and middle-class white Americans … hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed ... resentment builds over time." We believe this resentment is at risk of accelerating now that Obama’s election to the nation’s highest office has undercut the “uneven playing field” rationale for racial preferences. Taylor is concerned that
“based on Obama's record and the views of the civil-rights specialists on his transition team, there is every reason to worry that he will appoint civil-rights enforcers, judges, and justices bent on perpetuating the race-based discrimination against whites (and Asians) in many walks of life.”
Taylor concludes that it “would be most interesting to find out” if Obama “appreciate[s] the simple injustice of the New Haven firefighter case.” We go one step further: the American people deserve to know where Obama stands on this case, regardless of whether the Supreme Court decides to hear it. After all, it is Obama’s judicial and political appointees who will determine whether injustices of the kind seen in New Haven continue and, most importantly for Obama, whether the resentment of white and Asian Americans builds in the four years before the next presidential election.


In one sense, Ricci v. DeStefano is a typical case of judicial activism in which a panel of three liberal judges decided the case based on ideology rather than law. But in this case, the Second Circuit panel included the notorious judicial activist Sonia Sotomayor, who is at or near the top of virtually every list of potential Obama Supreme Court nominees.

As Taylor explains, Sotomayor and her two colleagues knew their decision lay on shaky legal grounds:
“[They] 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. … The three-judge panel initially deep-sixed the firefighters' appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.”
By a narrow 7-6 vote, the full Second Circuit denied the firefighters’ request for a rehearing. In their denial, Sotomayor and several of her colleagues argued that New Haven’s decision was "facially race-neutral" because New Haven did not “confer any actual benefit on applicants on the basis of race.” As Taylor explains, the judges were making the laughable claim that the city’s action was non-discriminatory because “none of the low-scoring, ineligible African-American firefighters was promoted either.”

If Sotomayor is nominated to the Supreme Court, you can bet she’ll be asked about Ricci v. DeStefano, including her absurd definition of race-neutrality and her attempt to deny due process to the firefighters through a cursory order that is difficult to review.

December 09, 2008

Moderate Obama Judges; Lower Courts

A pair of articles on the front page of yesterday’s Washington Post reach the same conclusion about where judicial picks are having the greatest impact, with one article looking forward and the other backward:
“With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts – which dispense almost all federal justice – where Obama can assert his greatest influence. … ‘In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.’”(quoting U. of Pittsburgh law professor Arthur Hellman)
“Although the impact of Bush's judicial appointments is most often noticed at the Supreme Court, it has played out much more frequently and more importantly [in the D.C. Circuit] and in the nation's 12 other appellate courts.”
We think the lesson for GOP senators and conservative activists is that Supreme Court speculation should not be allowed to distract attention from limiting the damage done to the U.S. Courts of Appeal during the Obama presidency. President Obama may or may not have a chance to appoint one or more Supreme Court Justices in the next four years, but he will begin to push the circuit courts – where most law is made – in the direction of judicial activism within months of assuming office. The only question is how fast and how far.

The first Post article, by reporter Jerry Markon, goes on to ask whether Obama’s generally moderate Cabinet picks point towards moderation in his selection of judges. Probably not the article suggests:
“Although his Cabinet choices have won praise from Republicans as centrist, Obama's past statements indicate a generally liberal judicial philosophy, one that favors Supreme Court justices and other judges who back abortion rights.”
In the same article, CFJ’s Curt Levey sums up the reasons for concern:
“Conservatives said they are hoping for moderate nominees but worry that ‘judges will be an issue where Obama throws a lot of crumbs to his political base,’ said Curt Levey … ‘People are worried. Obama has been unusually unabashed about believing in an activist role for judges.’”
The Obama quote used to illustrate his “generally liberal judicial philosophy [favoring] abortion rights” strikes us as ironic in that it could easily be read as a recipe for pro-life judges. Specifically, in a CNN interview this May, Obama said he wanted judges who sympathize with
“those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves.”
Sounds to us like a perfect description of unborn babies. We mention this to underscore the fact that constitutional law professor Barack Obama and the many other defenders of judicial activism have never been able to explain why their belief in a Constitution which evolves to protect the vulnerable leaves out not just unborn babies, but also crime victims, small farmers and home owners, victims of reverse discrimination by diversity-happy colleges and corporations, and most importantly, ordinary citizens who don’t want their votes to be overridden by judicial usurpation.

Could it be that the only real principle behind the Obama judicial “philosophy” is that judges should do whatever it takes to reach liberal outcomes?

December 04, 2008

President Bush's Judicial Legacy

As Brian Darling pointed out last week in Human Events, President George W. Bush has left an impressive mark on the federal judiciary. Darling writes:
“Bush’s appointments of Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito represent two major lasting victories for conservatives. Combined with Justices Antonin Scalia and Clarence Thomas, Bush’s appointments provide four reliably conservative votes on the nine-seat Supreme Court. He also appointed more than 300 conservative-leaning judges to federal district and circuit courts.”
The President's judicial legacy includes some 60 appellate court judges and more than 250 district court judges. Despite Democratic obstructionism in the Senate, President Bush stuck to his word and consistently nominated constitutionalist judicial nominees who were committed to the rule of law. As President Bush’s tenure as president comes to a close, it is important for conservatives to remember and be grateful for these accomplishments.

Obama’s Judges & the Bush Standard

Last Saturday, a Wall Street Journal editorial suggested that Barack Obama “renominate some of President Bush's highly qualified judicial picks who have been left to languish for years.” It would be a “good first gesture,” the Journal said, if Obama wants to “end[] the political war over judicial nominations” and “allay the concern that [he] lacks a constitutional standard for judicial selection.” As the editorial noted, “[t]here’s plenty of precedent.” In the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. During the Clinton Administration, Gregory was never confirmed, while Parker was confirmed to a lower court.

It remains to be seen whether President Obama will meet or exceed the Bush Standard by naming two or more of the current president’s judicial nominees to the appeals courts. But the Left apparently fears that he will. When it comes to judicial nominations, the surest way to know what the Left is worrying about is to look at what the Alliance for Justice (AFJ) and People for the American Way are railing against. Hence, eyebrows were raised earlier this week when AFJ responded to the Journal’s suggestion of reciprocation by denouncing it as a bizarre “fantasy.”

Why is AFJ concerned? Probably because reciprocation makes perfect sense for a President who promises to transcend partisanship and has nominated Bush’s Defense Secretary as his own. After two years of criticizing the current president for being too partisan, will Obama want to be seen as less bipartisan on judges than his predecessor?

AFJ chose to focus on the Journal’s mention of Steve Matthews and Bob Conrad as potential reciprocal nominees, presumably because the organization has already invested a lot in demonizing these two impressive Fourth Circuit nominees. But neither the Journal’s editors nor anyone else has suggested that Obama can meet the Bush Standard only by appointing Conrad and Matthews.

While the bad news is that Democrats raised the obstruction of judicial nominees to new levels during the last eight years, the good news is that the obstruction left Obama with many nominees to choose from should he decide to meet or exceed the Bush Standard. AFJ will not be able to demonize them all. In fact, some of them were selected by President Bush on the recommendation of Democratic senators.

December 03, 2008

Gay Marriage in California: It’s All Up to the Courts Now

An LA Times article addresses the numerous pressures and challenges confronting the California courts concerning Proposition 8. Maura Dolan reports that the Court is considerably torn. It knows that the political establishment – as well as a likely majority of the Justices – want Prop 8 struck down, but it lacks the legal precedent to overturn it and fears the possibility of a recall election. The Times explains the crux of the legal debate:
“The issue before the court is technical: whether Proposition 8 amounted to a sweeping revision of the state Constitution, which can be put on the ballot only by a two-thirds vote of the Legislature or a constitutional convention, or whether it was a more limited amendment, as its backers contended. Proposition 8 reached the ballot after a petition drive.”
However, if Proposition 8 is overturned by the Court, technical legal arguments will not quell the voices of the millions of Californians who will correctly regard the decision as a classic case of judicial activism. If Prop 8 is overturned and the voters are disenfranchised, it seems we can all set a date on our calendars for a recall election.

On a tangential note, libertarians would argue that if marriage were to be removed from state law and put in the private realm, this controversy would go away (see, e.g., Alan Dershowitz’s 2003 op-ed). Is the Prop 8 brouhaha the first step in convincing the public that marriage should be privatized?.