Sotomayor Reversed on Ricci: What will be Impact on GPD Case?

A couple of commenters here had predicted that Sonia Sotomayor would be reversed with the Supreme Court soon deciding on the New Haven Ricci case.  But it turns out to have been even worse, according to Wendy Long:

Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error.  She essentially committed judicial malpractice. 

That even Justice Ginsberg and the dissenters would have remanded — undoing what Judge Sotomayor did — confirms that Sotomayor is a far-left liberal judicial activist who ignores the law and rules on her own personal agenda, even beyond the current liberals on the Court.

There is nothing moderate, mainstream, or nonideological about that. This demonstrates that the White House spin on this nominee is a pure fabrication.
 
Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.
 
What Judge Sotomayor did 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.

There is already some discussion that this decision might have limited applicability to other cases.  I suppose we will see, in the long run, how it will affect the recent complaint against the Greensboro Police Department being explored by the federal Department of Justice.  That particular complaint also was with regard to preemployment testing.

Update: Sam Spagnola thinks this decision will have significant repercussions beyond the case that was decided upon.

Comments

[scharrison]

Joe, this NR article is an embarrassment of misinformation, and you should be equally embarrassed for posting it here on your blog.

The average person reading this would assume this had been a 9-0 unanimous decision, when in fact it was a very contentious 5-4. The only hint you get is:

"That even Justice Ginsberg and the dissenters would have remanded..."

Which is itself a steaming pile. I just finished reading Justice Ginsburg's dissent, and I found nothing at all to back that up.

[Joe Guarino]

Steve, the decision was 5-4, but that is not what this Bench Memo's post was addressing. It is talking about which justices felt Sotomayor's handling was in error; and whether remanding would be justified. It claims all nine would have made that determination.

You can read through the other Bench Memo's posts from today to discern the logic behind the statement Wendy Long made.

Regardless of what the vote might have been, or how the justices might have felt, this was not a very good day for Sotomayor. But she still seems likely to be confirmed because of the simple math in the Senate.

[scharrison]

Come on, Joe. Did you read Ginsberg's dissent, or even take a gander at how long it was? Even if there was a little footnote:

“Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order.”

to read the entire 39 pages of Ginsberg's dissent, where she went into great detail showing how the lower court was correct, including this little tid-bit in the summary:

"Perhaps the District Court could have been more expansive in its discussion of these issues, but its conclusions appear entirely consistent with the record before it."

and then pronounce that all nine Justices confirmed that Sotomayer was in error, and had committed judicial malpractice, is a load of you-know-what.

There's reporting, then there's analysis, and then there's Soviet-style misinformation. You remember that old joke about the (fictional) drag race between the USA and the USSR, and how Pravda/TASS would report it?

"In the race today, the USSR took Second Place, while the American car came in a dismal next-to-last place."

[brandonB]

Joe, it appears that sch has a point with regard to the article. I have to say, those same lines jumped out at me to, but that shouldn't trump the decision that the court made.

[Bubba]

"...to read the entire 39 pages of Ginsberg's dissent, where she went into great detail showing how the lower court was correct, including this little tid-bit in the summary..."

You missed one important little item.

Ed Whelan:

"In footnote 10 of her dissent, Justice Ginsburg,(agreeing with the position that President Obama’s Department of Justice took, [struck out]) states:

'Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order.'

But because the majority saw no need to remand, Ginsburg explains 'why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.'

In other words, Ginsburg doesn’t believe that final disposition of the case is appropriate.

***She and her fellow dissenters therefore believe that Sotomayor and her Second Circuit colleagues and the district court were wrong to grant summary judgment to the City of New Haven.***

[Update/clarification: Ginsburg believes that Sotomayor and the other judges below applied the wrong standard: 'The lower courts focused on respondents’ "intent" rather than on whether respondents in fact had good cause to act.' I haven’t had time to examine whether Ginsburg’s standard is in fact the same that DOJ advocated and have therefore struck through the passage above. I’ve also corrected a misquotation.]"

http://bench.nationalreview.com/post/?q=OTBhOTEzMTZhMmMyNDczNTE5MjA4MTI0Mjk1Zjc5MDA=

In his final comment, Whelen goes on to say this:

"I see that various supporters of Judge Sotomayor are contending that she’s vindicated by the fact that the district court’s legal reading that she adopted is roughly comparable to the position of the four dissenters in Ricci. (Set aside that even the dissenters say that she applied the wrong legal standard.)

But this claim of vindication misunderstands the primary charge against Sotomayor that arises from her handling of the case."

Read the rest.

http://bench.nationalreview.com/post/?q=ODg2YTFiOWM4ZmMxMmE4ZmI2MTI1MjQ4ZjBmYmQ2NWM=

[Joe Guarino]

Thanks, Bubba, for filling in the blanks from the Bench Memo's analysis. Different people will disagree as to the meaning and import of the numerous statements contained in the opinions written by the various justices. It seemed clear to me from the above discussion that there were, at the very least, technical issues with the lower court ruling-- if not substantive issues-- that concerned many of the Supreme Court Justices.

[scharrison]

I read Ed Whelan's pieces, Bubba. He also italicized "if" in Ginsberg's quote:

'why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.'

to call attention to it, to back up his opinion that the dissenters didn't think the final disposition was appropriate. But then he made the (incorrect) leap that it (therefore) meant Ginsberg thought Sotomayer was wrong to grant a summary judgment in the lower court.

But he should have italicized the words "this court", because that is what proves that Ginsberg was talking about the Supreme Court's (majority) opinion (being wrong), not the lower court's opinion.

The fact of the matter is, the case was overturned. Which most of us expected. But the efforts to make it seem like all nine Justices stood against Sotomayer on this case is merely a clever political construct.

[Joe Guarino]

Steve, what is your perception of why she felt that a remand ordinarily would have been in order in this case?

Again, Sotomayor is probably going to be confirmed, even though some of us feel hers is a flawed nomination.

And make no mistake about it. Obama probably could do worse.

[scharrison]

Probably because the case was destined for the Supreme Court anyway, regardless of which way the lower court ruled. Back up New Haven's rejecting of the test results, the white firefighters push it up. Go against the city, the black firefighters push it up.

So the easy and politically safe thing for Sotomayer to do would be to send it up herself. But she didn't, and she probably knew she would get overturned by the conservative Court.

Now, you may not see it this way, but I think that shows a little backbone. Of course, at the time she probably had no inkling she would find herself nominated for the Supreme Court, and she might have washed her hands of this case if she'd known. But we don't know that.

[Brenda Bowers]

This action was a long time coming in the quest for Civil Rights for all. I am happy it was finally taken up by the SC. I am however very disappointed that we still have four justices who are biased and too aware of color, race, creed or sex when making their decisions. It should not be this way in a perfect world. And yes I know too well this is not a perfect world, but we can at least strive for perfection and our courts of law (especially the Supreme Court) should be the first place where truth and justice overcomes all obstacles.

At any rate, this will have huge implications for the future both in the public and the private sectors. It means White men can now sue for discrimination and have a chance at a fair hearing, which hasn't been the case for decades. BB

[Joe Guarino]

Steve, my understanding of Ginsburg's statement that a remand of this case would have ordinarily been in order is as follows: "ordinarily, I would have sent this case back to Sotomayor's court because they handled something incorrectly; but the Supreme Court majority is making a decision on the substance of the case, so realistically we are not going to do that. So we need to deal with the substance."

That is my interpretation. Ginsburg was acknowledging that something important was not done correctly at the level of Sotomayor's court-- although she agreed with the "outcome" that Sotomayor sought.

[Bubba]

"But the efforts to make it seem like all nine Justices stood against Sotomayer on this case is merely a clever political construct."

No, it isn't.

All nine agreed in principal that the case should have been remanded.

The only "clever political construct" comes from the Blue Bozo Brigade's attempt to mitigate the resulting damage to Obama's nominee.

[Bubba]

From last October, before the anointment, Whelan anticipated the Sotomayor nomination, and responded with some withering analysis of the attempt by Sotomayor and her judicial partners in activistism to bury the firefighters' case:

http://bench.nationalreview.com/post/?q=NzI4ODU1MjIxMThiNGQzODUwYTFlYzNlNWNlOWMzOTc=

Conclusion:

"Cabranes and his five colleagues clearly believe that Sotomayor and her panel colleagues acted as they did in order to bury the firefighters’ claims and to prevent en banc and Supreme Court review of them. Cabranes’s opinion expresses his 'hope that the Supreme Court will resolve the issues of great significance raised by this case' and his judgment that plaintiffs’ claims are 'worthy of [Supreme Court] review.'

Quite an indictment—by a fellow Clinton appointee, no less—of Sotomayor’s unwillingness to give a fair shake to parties whose claims she evidently dislikes. Hardly the mark of a jurist worth serious consideration for the nation’s highest court."

Indeed.

But that won't stop the apologist supporters and enablers of this worldview agenda driven nominee, will it?

[Bubba]

Paul Mirengoff:

"Short of writing 'get whitey,' It's difficult to imagine how Judge Sotomayor could have fouled up the Ricci case any more than she did. Let's count the ways.

First, her panel issued a summary order in a case that ended up being heard by the Supreme Court and generating a 5-4 decision with nearly 100 pages worth of opinions.

Second, Sotomayor's panel was sharply criticized by her mentor, Judge Cabranes, for its 'perfunctory disposition' of the case, in an opinion which suggests that Cabranes believed that Sotomayor and her fellow panel members were attempting to bury the matter.

Third, the Supreme Court reversed the panel.

Fourth, even the dissenting Justices blew off the reasoning of Sotomayor's panel in a footnote, and fashioned their own, different standard for deciding the case.

Fifth, the dissenting Justices made it clear they would have disposed of the case differently than the way Sotomayor's panel disposed of it. The panel affirmed the district court's grant of summary judgment in favor of the City of New Haven, which would have ended the matter.

The dissenters, in the panel's position, would have remanded the case to the district court for further proceedings under the different standard for deciding the matter that it articulated."

There's more, plus comments on the information previously provided, here:

http://www.powerlineblog.com/archives/2009/06/023928.php

[scharrison]

Bubba, fellow Clinton appointee or not, Judge Jose' Cabranes was also on the list of potential SCOTUS nominees:

http://politicalticker.blogs.cnn.com/2009/05/01/list-of-possible-replacements-for-justice-david-souter/

If you want to start analyzing potential agendas, I would imagine tearing down those you are competing with for a job might rank in there somewhere. It's a much more common agenda than aspiring to the bench to implement a "worldview", whatever that means.

I don't expect you to see a potential conflict with Cabranes' actions, though, because he's saying something that fits your agenda.

[Roger Greene]

Scharrison, Cabranes dissent was written last June (08). If he was trying to angle for a Supreme Court seat and cut out Sotomayor, he'd have to at least be Nostradamus. Souter didn't announce his retirement until May 1, 2009.

[scharrison]

He's been angling for a Supreme Court seat since Bush #1.

Here's quite a bit more about the relationship between Sotomayer and Cabranes:

http://www.nytimes.com/2009/06/22/us/politics/22mentors.html?pagewanted=1

Bubba, you may be right about that "worldview" thing, at least when she was a student, anyway. Hopefully she's grown out of some of that.

[Joe Guarino]

Bubba, the Mirengoff excerpt you provided is the best summary I have seen thus far.

[Bubba]

"....the Mirengoff excerpt you provided is the best summary I have seen thus far."

Indeed.

Hence, the deflection and the growing desperation of Stevie's rationalizations.....

You will notice how he's stopped trying to argue his support of Sotomayor on the issues of concern to the rest of us.

That's what generally happens when someone attempts to defend the indefensible.

[Everest]

So Scharrison, I have a hard time following your point... If Sotomayor was simply showing backbone, as you suggest, then she demonstrates this courage by refusing to listen to a case? And while she had no thoughts about a Supreme Court appointment, ol' lousy Cabranes was angling for one, and that's why he hammered her panel the way he did? He thinks his best way to the SCOTUS as a liberal is to take a case involving reverse discrimination...? That's your theory?

The fact is that Cabranes knew the case deserved attention - your implying that he would have ultimately sided against her, and I would bet against that. All Cabranes said was that it deserved more than the simple "wave of the hand" away that it got....and nine Supreme Court Justices agreed with him. Not a great start for her, and history pretty clearly shows she's got an agenda.

[scharrison]

Bubba, I should have known better than to give you any points. Instead of acting with any sort of grace, you immediately try to use that against me.

Have fun with all of your open-mindedness.

Joe, I'll leave this time without forcing you to delete anything.

[jaycee]

As expected, the Obamamaniacs are taking Sotomayor's rebuke by the Supreme Court and trying to rewrite it into some kind of vindication for her.
We knew this was coming, didn't we?

[Bubba]

"Instead of acting with any sort of grace, you immediately try to use that against me."

Blah balh, woof woof.

Why don't you grow a spine, and argue a point on it's merits, as opposed to grasping for straws, or playing the victim?

Your arguments in support of Sotomayor, and by extension Obama and your worldview on the issues discussed have been thoroughly and effectively refuted.

It's not my fault that your various talking points here have no merit.

[Stormy]

Papers submitted by Sotomayor today to the Senate indicate that she was part of the San Juan Defense Fund that helped slime Bork in 1987. And, it also is shown that she has had ties to ACORN.....

http://www.foxnews.com/politics/2009/07/01/sources-puerto-rican-group-sends-sotomayor-documents-senate/

[Joe Guarino]

It is interesting, Stormy, how so much of what occurs with Supreme Court nominations today refers in some way back to the Bork episode.

Thanks for providing that link.

[Jon Firebaugh]

Scharrison stated:
"So the easy and politically safe thing for Sotomayer to do would be to send it up herself. But she didn't, and she probably knew she would get overturned by the conservative Court.

Now, you may not see it this way, but I think that shows a little backbone. Of course, at the time she probably had no inkling she would find herself nominated for the Supreme Court, and she might have washed her hands of this case if she'd known. But we don't know that."

Now that's certainly putting spin on what was an obvious rebuke of Sotomayor.
Even the dissenters know she applied the wrong legal interpretations. To posit that this judge saw this outcome ahead of time is shear BS. She is obviously the least intellectually qualified SC nominee in the last 30 years. She didn't wash her hands of the case because she sees her mission as an activist jurist, as she stated in her address at Duke University. Activist jurists always think they might slip one by the big boys and girls......and they sometimes do.

[Joe Guarino]

I wonder whether her chances of being confirmed have diminished. I had indicated in another post today that the sentiment of the people is turning against her, but the Democrats have 60 votes in the Senate. I suppose we will see how the confirmation hearings go.

[Stormy]

With the new clown in town, Sotomayor will get through. No way Obama loses his nominee. She would have to murder a couple of senators in a hearing to even get close to not being confirmed, and I am not sure that would do it, if they were Republicans.