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.)

The Sotomayor Discussion on the Island

Some of my North American friends have asked me about the reaction to President Obama's nomination of Sonia Sotomayor for the Supreme Court. I'm surprised that there has been such a muted reaction here on the island: not as much press coverage as I would have expected, and so far not a single Puerto Rican friend or colleague has mentioned it. Puerto Ricans have mixed feelings, not all of them attractive to contemplate. Sotomayor was born and raised in the Bronx: this means that a lot of the locals don't consider her to be a "real" Puerto Rican. This alienation between the approximately 4 million Puerto Ricans who live on the island and the approximately 4 million Puerto Ricans who live in the States has deep roots.

The initial large waves of immigration occurred during the Great Depression and during and after World War II, and many of these migrants were from the poorer and blacker sectors of the society. Puerto Ricans, who have a very complex genetic heritage and a society that is, relative to most societies worldwide, not very racist, nonetheless have deeply conflicted feelings about their African heritage. In the Caribbean racism takes the form of "whiter than, blacker than," rather than the one-or-the-other mythology of the North. So the islanders, many of whom are more similar in identity to middle-class people from other Latin American countries than they are to the US urban underclass, often look down on the "Nuyoricans." Depressingly, it is not hard to find people who say "She's not Puerto Rican."

Then there is the "status" issue, that is, the question of the formal relationship between Puerto Rico and the US. Many nationalists feel that Puerto Rican participation in US institutions is part of a creeping assimilation (the pejorative term here is "annexation"). These elements resisted the conducting of presidential primaries by the US parties here last year, primaries that I saw as a very positive development: the tension is between a farther-off goal of Puerto Rican independence (something I am not against and that I predict will eventually occur) and the nearer-term effort to enfranchise Puerto Ricans, who are US citizens but second-class ones who have no senators or congressmen, nor the right to vote for the president (this includes me, by the way: as an island resident, my civil status is exactly the same as all other residents). This while more than one out of ten US soldiers overseas is Puerto Rican: I take that to be an outrage against the US Constitution.

Finally there is an intensely willful insularity among islanders, a manifestation of the deeply ingrained instinct to passive resistance that has evolved over centuries of colonial domination. Ask a Puerto Rican on the street who the Vice-President is and the odds are high that they will have no idea. A paradox of Puerto Rican politics is that the lower the socio-economic status, the more likely that the individual will favor statehood: Uncle Sam protects them from the oligarchic Spaniards; and at the same time the lower classes are more likely not to speak English and to understand very little about US institutions and political life. (The haute bourgeois Puerto Rican professors at the university, who actively work to prevent the students from becoming proficient in English, are almost universally fluent English speakers themselves).

So all in all, I have to report that the reaction is distinctly depressing, considering that Sotomayor's mother was born in Lajas, an area on the southwest coast about a half-hour's drive from where I'm sitting, and that Sonia Sotomayor herself is a native Spanish speaker whose father never learned to speak English. But the circumstances of Puerto Rican political life are both tragic and complex. The marginalized are always turned against each other.

There is some good news to report, however, at least good from a Democratic partisan perspective. In yesterday's El Nuevo Dia, one of the biggest papers on the island (maybe the biggest) and one that could fairly be described as center-right politically, I found an article on page 20 (I'm always on the lookout for any Sotomayor coverage). "Espadas en alto por Sotomayor" was the headline: "Swords raised for Sotomayor." It was a short piece consisting of interviews with two Puerto Rican politicians.

The first was Ramon Luis Rivera, the alcalde of Bayamon, a large municipio that comprises part of the greater San Juan metropolitan area and that consists mostly of large, dense working-class neighborhoods (five of my mother-in-law's six sisters live there). Puerto Rico is divided into 78 municipios, which are a cross between cities and states: "alcalde" translates literally as "mayor," and the head of state of the island is called the governor, but the alcalde is a sort of mini-governor of a geographical region, usually centered around a city of the same name. Bayamon is one of the largest municipios on the island in terms of population and is as I said part of the San Juan urban area, making Sr. Rivera the political equivalent of somewhere between mayor of Newark and governor of New Jersey.

Rivera has been affiliated for many years with the US Republican Party. Many higher-level island politicians affiliate with one or the other US parties, for reasons of political expediancy. But the discussion in the US about the nomination of Sotomayor is turning him around. "Me han sorprendido declaraciones fuera de lugar de varios lideres republicanos": "I have been surprised by the statements coming from various Republican leaders." He singled out comments by Newt Gingrich and Rush Limbaugh, who have both accused Sotomayor of being a racist. "Sotomayor no solo tiene todas las calificaciones de su capacidad juridica y profesional, sino que tambien le daria un balance filosofico al Tribunal Supremo de Estados Unidos": "Sotomayor not only has all the judicial and professional qualifications, but she will also give philosophical balance to the Supreme Court." Exactly the point that the right-wing Republicans are attacking. He goes on to mention Republican opposition to President Obama's stimulus plans, and unlike the Sotomayor nomination, the issue of stimulus money is on the lips of Puerto Ricans everywhere one goes. The economic situation here is much more desperate than in the States. He concludes that he has been a Republican "hasta ahora," but now he has "la carpeta abierta," that is, the issue is open.

The other politician mentioned in this article was Jose Enrique "Quiquito" Melendez, like Rivera a member of the Partido Nuevo Progresista Popular, the pro-statehood party that is generally viewed as the most conservative party (although that is another complicated discussion; some of the PNP's leaders are affiliated with the Democrats, and their main rival the PPD, the "Populares," also represents some conservative elements such as the Catholic vote etc.: a discussion for another time). Melendez is the PNP's candidate for an upcoming Puerto Rican Senate vacancy, and he was recently dispatched to Washington to meet with the (extremely conservative) Republican senators Don Young of Alaska and Dan Burton of Indiana, who is certainly one of the most right-wing senators today. The original agenda was the legislation on yet another plebiscite on statehood sponsered by Young and Burton, but Melendez also raised the issue of the Sotomayor nomination, urging the Republicans to support it.
His reaction to that conversation was along the same lines as the comments by Rivera: "El Partido Republicano no puede ponerle trabas innecesarias a una candidata que tiene todas las calificaciones": "The Republican Party cannot put unnecessary conditions on a candidate who has all of the qualifications."

The reason all of this is significant is that Luis Fortuno, the young and recently-elected governor, has been very clear about his ideological allegiance to the Republican Party as well as to statehood. Now, however, he is scrambling to deal with a budget in free-fall, quite possibly ruining his chances of re-election by announcing over the past two weeks that he will cut the public payroll by some 30,000 people, and sending out last Monday the first 7,816 dismissal slips in the mail: the kind of thing that is the kiss of death in Puerto Rico's traditional patronage politics. To reform and rehabilitate Puerto Rico's finances he will need every ounce of help he can get from Democratic-controlled Washington. Now the Sotomayor nomination is throwing a major wrench into his plans: perceived Republican prejudice may pull the domestic political rug out from under him.

Thanks a lot, Newt and Rush.

Talking Points For Defending Sotomayor

When despairing of the inane political football games that Supreme Court nominations too often become, we might take some consolation (cold comfort, I admit) in the fact that it has always been so, and in fact if anything 19th Century Court politics were even rougher than they are today. It's also likely that Sonia Sotomayor's nomination will go through; it's hard to see how the Republicans could stop it. Still, we will now have an interlude of fussing and fighting and it's useful to try to pull out the most salient talking points.

Those points are not, I don't think, the most obvious ones. The obvious points are as follows:

1) Obama continues to follow a recent trend started by Clinton and, after initially stumbling with his arrogant attempt to appoint an old crony, Harriet Miers, hewn to by Bush in his appointments of Roberts and Alito: appoint extremely accomplished jurors. This is definitely a good idea as the corpus of law only grows more complex and simply larger with each passing year. In the case of Sotomayor, we have a jurist who graduated summa cum laude from Princeton, was an editor of the Yale Law Review, worked for the legendary Manhattan District Attorney Robert Morgenthau, and has now served eleven years as a judge on the U.S. Court of Appeals for the Second Circuit in New York City.

2) Democrats and liberals like myself also have nothing to complain about: we have the first Latino/a nominee in the history of the Supreme Court - and a Puerto Rican from the Bronx, no less! That's maybe the best part. A woman diagnosed with diabetes at a young age, raised by a single mother. Not only that, but she is most famous (until now) for ending the baseball strike in 1995 coming down on the side of the players, thus avoiding what would have been the first cancellation of the World Series in 90 years. Her overall record is liberal but hardly "activist" (as her attackers will begin shouting on cable today), with plenty of examples of ruling against liberal outcomes on the basis of constitutional law.

But here are three points to keep especially "on-message" as the right wing tries to tar Judge Sotomayor: a) She was a prosecutor in Manhattan for six years. b) She was recommended by Daniel Patrick Moynihan, but the President who actually appointed her was George H. W. Bush, and most importantly c) as a Judge on the Couirt of Appeals in New York City, most of her rulings have not concerned "social" issues. She has been working most of this time on complex cases involving the financial and banking industries as well as communications technology, just the kinds of cases that are likely to come before the Court in the next few years. These are the things one might want to mention in public debate with the dittohead troglodytes.