Who's worse, Sotomayor or the Supreme Court?
In a 5-4 ruling yesterday, the Supreme Court overturned Supreme Court nominee Sonia Sotomayor’s defining decision, the case of Ricci v DeStefano, in which she ruled that it was OK for the city of New Haven, Connecticut to refuse to use the results of tests for promotion of fire fighters after no blacks passed the tests.
Sotomayor’s ruling was, in my opinion, obviously wrong. In fact, the 5-4 decision somewhat masks the fact that all or nearly all of the Justices disagreed with her handling of the case even if they upheld her decision. As the editors of National Review note, “The only consensus the nine justices found was that the handling of case by Sotomayor’s three-judge appeals-court panel was shoddy. Even the four dissenting justices agreed that the Second Circuit applied the wrong legal standard.” And as the WSJ points out, “In footnote 10 of her dissent, Justice Ginsburg wrote that while she disagreed with the decision to reverse the lower court ruling, there were questions about how it was decided. Based on the lower court’s mistaken focus on intent, she wrote, ‘ordinarily a remand for fresh consideration would be in order.’”
So I don’t know what troubles me more, the fact that Sotomayor ruled the way she did or the fact that 4 Supreme Court justices agreed with her.
Here’s a quote from the WSJ’s take on the case which bears repeating:
Ginsburg opens her opinion by observing that “the white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy.” To which Alito replies:
“Sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law–of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.
Of course, Alito hits the nail on the head when it comes to the major question surrounding Sotomayor. She’s said specifically that she does not believe impartial application of the law is possible – and seems to question whether it’s even desirable. Don’t forget that Sotomayor’s decision was obviously racist: whether you want to say it was against whites or for non-whites, it was made on the basis of race. So much for Obama’s claim to represent post-racialism.
Monday’s Supreme Court decision, on the last day of their term, will be great ammunition for believers in the Constitution who want to challenge Sotomayor’s nomination (or for Republicans who just want to challenge her for partisan political purposes.) That said, I don’t think it substantially diminishes her chances of being approved which I believe remain very high if no other smoking gun is found to show her to be unqualified – which she surely is.
Justice Ginsburg’s arguments were remarkably weak, something you’d expect from a partisan leftist law student, for example arguing that Sotomayor’s decision was OK because the white fire fighters had no guarantee of a promotion and because nobody else had been given a promotion. She must have twisted her cerebral cells into knots trying to find a way to claim that invalidating the results of THE test that was to decide promotions simply because not enough minorities passed is somenow not racist.
According to AP’s article about the decision, “Ginsburg said the court should have assessed ‘the starkly disparate results’ of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.”
Her rhetoric assumes that “diversity” trumps equal protection, that diversity is a paramount goal in itself, and that diversity would for some reason make the fire department a better place (or at least not worse), which for a place as results-oriented as a fire department is very hard to believe.
Again, it is simply remarkable that 4 Justices could find that Sotomayor’s obvious racist and improper decision was OK. At least she lost, but the closeness of the vote says a tremendous amount about how political our Supreme Court has become – a great tragedy for our nation.
In the long run, unless one of the “conservative” Justices leaves, I expect the Court to be somewhat more aggressive in challenges to “civil rights” legislation as people who fall victim to the tendency of such legislation to penalize whites will argue that society has generally moved past the need or acceptability of such provisions. And they will be right.
In the meantime, the poster child for affirmative action will be elevated to one of the most prestigious and important jobs on Earth, simply because the man who has the right to nominate her was elevated to the most important job on earth for no real reason other than his color.
For those of you who are jarred by that suggestion, ask yourself this: Would a white junior senator from the Midwest with less experience (in government, the private sector, or anything else really) than any other candidate ever get even close to either party’s nomination? Of course not. Really, go through the list of US Senators and ask yourself honestly if any of the 10 or 20 most junior members of the Senate (at least those who have never been a governor) would stand a chance? Again, of course not. Yes, that’s right: Barack Obama is president primarily because he’s black…and that would be fine if he had a clue about the Constitution – but he doesn’t. And now he want’s to poison the most important court in the world by appointing someone with as little understanding of our nation and as much contempt for the vision of the Founders (including, not least, the rule of law rather than feelings or whims) as he has.
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