Following “three days of grueling questioning” (including such hard-hitting gems as “what was the publisher of  the encyclopedias your working-class mother bought you because she so strongly believed in the value of education” and “Perry Mason won all but one of his cases - what was the one case that he lost?“), Sonia Sotomayor is set to be confirmed as the next U.S. Supreme Court justice - the most rapid (rushed?) confirmation of any Supreme Court justice in U.S. history (beating out current justice and Clinton nominee Ruth Bader Ginsburg by a few days, depending on when the vote is actually held).

It was apparent even before the hearings began that the fix was in (Feinstein: Sotomayor a sure thing). Given the overwhelming numerical advantage of Democrats in the Senate, and hard behind-the-scenes arm-twisting to ensure party discipline, there was little that either “blue-dog” Democrats or Republicans could do to block confirmation.  However, our Senators missed a golden opportunity to stand on principle and make the case for the rule of law, and the importance of confirming (or retaining) justices on that basis.

Instead, the discussion revolved around racial politics (”underlying politics are dicey for Republicans“), personality (She is an amazing, warm and intelligent woman“) and her “inspirational life story:”

Now, I’m as much a fan of “inspirational life stories” as the next guy; and when I have a daughter, I hope she’s just like Gracie (the cute, wide-eyed, precocious kid in the ”Baldo” comic strip, above) - especially since if I have a son, he’s MUCH more likely to resemble Calvin (of Calvin and Hobbes) at that age.  But an inspirational life story is NO BASIS for confirming or retaining a Supreme Court justice! 

A judge’s appearance, gender, ethnicity, “inspirational life story,” etc. are irrelevant.  Our system of justice requires a judiciary committed to upholding the rule of law and equal administration of justice.  Although “we the people” don’t (directly) have a vote at the Federal level, we CAN vote to uphold the rule of law here in Colorado.  Vote “NO” on the unjust justices of the Mullarkey Court in 2010 - let’s Clear The Bench, Colorado!

Breaking News: the U.S. Supreme Court just reversed Sotomayor (Monday, 29 June 8AM MDT)

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

This decision must be considered a victory for the rule of law over “preferred outcome” jurisprudence.  The ruling majority in the case, Ricci vs. DeStefano, upheld the rights of New Haven firefighters under Title VII of the Civil Rights Act of 1964, which “prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e-2(a)(1).”

The city of New Haven, CT had refused to certify the results of an examination given to firefighters seeking to qualify for promotion once it became apparent that none of the black candidates qualified, “based on the statistical racial disparity” and responding to public pressure.  The Supreme Court found

There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” (p.33)

The City, moreover, turned a blind eye to evidence that supported the exams’ validity. (p.33)

The majority ruling was clear in upholding the rights of ALL Americans to equal treatment under the law:

The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. (p.37)

The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. (p.38)

Racial discrimination is abhorrent to the principles expressed so eloquently in the 4th of July 1776 American Declaration of Independence (which must be seen as the philosophical source of our system of laws) and enshrined in the U.S. Constitution: that ALL men are created equal, and deserve equal treatment - as individuals, not categories or representatives of groups - before the law.  Supreme Court Justice Antonin Scalia makes this point explicit in his concurring decision:

“[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995)  (p.40)

However, some ‘justices’ apparently don’t see things this way, viewing people as mere manifestations of group (race, class, gender, etc.) identity, to be advanced (or denied advancement) due to their identification or affiliation, based on the sympathies (or “empathy“) of judges interpreting the law.

 The logic (or lack thereof) in Justice Ruth Bader Ginsburg’s dissent is illuminating:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. (p.55)

Justice Ginsburg’s stance - that “white firefighters” have no “vested right” in fair and equal application of the law and due process in applying for promotion, only because no one else received preference instead - is ludicrous.  Moreover, her position damages not only the “white firefighters” (and Hispanics) denied promotion as a direct result, but ALL firefighters and citizens of New Haven.  In the six years since the city rejected the results, NO firefighters have been promoted to the rank of Lieutenant or Captain AT ALL.  This cannot be of benefit to the firefighters (even those not making the cut) or anyone in the city.  Typical of preference-based treatment, everybody suffers.

Justice Samuel Alito’s opinion concurring with the majority decision - which also exposes the undue influence exerted by political allies of New Haven Mayor DeStefano in throwing out the test results - provides perhaps the best summary of the underlying principles of the case:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “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.  (p.54, emphasis added)

Whether in the Supreme Court of the United States, or in Colorado’s Supreme Court: citizens have a right to demand evenhanded enforcement of the law.  The “Mullarkey Majority” in Colorado has repeatedly demonstrated incapacity or unwillingness to live up to this standard.  We demand better; vote “NO” on retaining the unjust justices of the Mullarkey Court (Justices Bender, Martinez, Rice, and Chief Justice Mullarkey) in 2010.  Let’s Clear The Bench, Colorado!

The recent nomination of Sonia Sotomayor to succeed retiring justice David Souter on the United States Supreme Court has generated increased scrutiny on the power of the judiciary to endorse and validate government seizures of private property.  Joining the notorious 2005 Kelo vs. New London case at the Federal level, and the outrageous Telluride Land Grab case decided a year ago yesterday (2 June 2008) here in Colorado, is a lesser-known ruling by Judge Sotomayor in 2006 (Didden v. Village of Port Chester).

A recent article by distinguished law professor Richard Epstein of the University of Chicago characterized Sotomayor’s ruling in this case as an even worse attack on property rights (and individual protections) than Kelo:

The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow.

So Sotomayor and the Second Circuit essentially endorsed a thuggish extortion racket “pay-to-play” move by a small-time tinpot dictator controlling a local redevelopment district.  Having spent some time overseas, this sounds more like the kind of 3rd World corruption you’d find in some of the worst-governed corners of the globe, not the United States of America.  Or is that the new standard on the East Coast?  “Back to the Future” of Boss Tweed and machine-style politics?

As Epstein notes, “American business should shudder in its boots” - to say nothing of individuals owning homes (Kelo) or other property (Telluride) over which government casts a covetous eye.  When outright theft is justified in the name of law - who can respect the law?  We MUST restore accountability to our judiciary - and restore the rule of law - before it’s too late.

In Colorado, we have that opportunity - vote “NO” on retaining the unjust justices who perpetrated the Telluride Land Grab when they must face the voters in 2010.

Clear The Bench Colorado Director Matt Arnold interviewed by Jimmy Sengenberger of SengCenter radio on the importance of impartial justices, judicial philosophy, and upholding the rule of law against the backdrop of President Obama’s nomination of Sonia Sotomayor to the U.S. Supreme Court and the failure of the “Mullarkey Majority” on the Colorado Supreme Court to live up to the standards of jurisprudence demanded of justices at the highest level.

Matt discusses some of the reasons that Colorado voters should “clear the bench” in 2010 by voting “NO” on four “unjust justices” of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) and how the Sotomayor nomination provides a teaching moment on the attributes, qualities, and standards expected of judges.

Listen to the interview (which starts at about halfway through the show, @29 minutes)