Republican Misrepresentation of Sotomayor's Role in "Ricci vs. DeStefano"

There isn't much chance that Judge Sonia Sotomayor will not be confirmed later this month as the next Supreme Court Justice, the first latino/a (and a Puerto Rican from the Bronx no less) to go on the Court. So I'm just going to focus here on something that is very important about what we're watching this week whether she is confirmed or not, and that is the way the right wing (and to that extent the media) are misrepresenting the actual facts about Judge Sotomayor's ruling on Ricci vs. DeStefano. There has been some reporting that this issue will be the focus of Republican criticism.

Remember as we review the facts of Judge Sotomayor's participation in that case that most Senate Republicans understand that the perception that Republicans are attacking Sotomayor because she is a latina is political poison for the Party. The only big electoral state the Republicans carried in 2008 was Texas: everyone can do the math.

Listen to the Republicans this week. They will be implying (sometimes baldly stating) that Judge Sotomayor endorsed reverse discrimination in the Ricci case. The Ricci case, they will loudly state, is the proof that Judge Sotomayor is a reactionary affirmative action reverse racist. Here are the facts:

1) Both sides in the original situation appealed to the same legislation, Title VII of the Civil Rights Act. The Civil Service Board of the City of New Haven invalidated the results of the firefighter's promotion exam because the Board was worried that they might be sued under Title VII. Ironically, the firefighters who had passed the exam (17 whites and 1 latino) then sued the City under that very law, Title VII. Two things to notice: a) Both sides appealed to the same law. This was not a dispute about the constitutionality of the law. b) The Civil Rights Act is legislation that was passed by Congress. Any judicial proceeding affirming the right of the City to act under its interpretation of the Act is affirming the constitutionality of a law passed by the legislative branch. Nothing more, nothing less.

2) The 18 firefighters' case was heard in Federal District Court by Judge Janet Bond Arterton, a Clinton appointee. She ruled against the firefighters in a "summary judgement." That is, she ruled that there was not sufficient reason for the Courts to overturn a decision of the City. Again, this is basic everyday "constructionist" jurisprudence, of the kind conservatives support. No policy-making, and upholding the authority of the elected lawmakers.

3) This is the most important detail, I think: the case next went to the Second Circuit Court of Appeals. There is was heard by a three-judge panel. The presiding judge, that is the judge that wrote the opinion, was Judge Rosemary Pooler. The third judge was Robert David Sack. Pooler wrote what is called a per curiam decision all of eight sentences long. Such decisions are anonymous and unanimous, and are used by courts where there may be disagreement among the judges but a collective view that it is not worth fighting it out. So Sotomayor played, relatively speaking, a very small role in this case. The Second Circuit simply upheld Judge Arterton's ruling, which simply stated that the City's Board had been acting properly within its understanding of the law. Sotomayor did not write this ruling, and it is an anonymous and unanimous ruling. She sat on a three-judge panel that was presided over by someone else. That's it.

4) The Supreme Court ordered a review of this case certiorari, meaning it exercised its authority to instruct the Circuit Court to send the case up for review. That is, the Supreme Court intervened in the process to cause a case to go up to the Court that otherwise would have come to an end. The Court ruled in favor of the firefighters on June 29th, along the expected 5-4 ideological lines.

Remember the gist of these facts as you listen to the Republicans all week telling us that Ricci vs. DeStefano is proof that Sotomayor is biased and an activist. It is sheer distortion. Get a better sense of Sotomayor here, for example, or here.

(Here and here are two earlier posts tagged Sotomayor.)