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!

Another excellent article (by Thomas Sowell) amplifies my earlier critique of “empathy” as a basis for selecting judges (particularly for the highest court - state or federal Supreme Court).  ALL citizens are entitled to fair and equal treatment before the law - Justice must be blind to race, class, ethnicity, or social status.  We must uphold the rule of law - not “rule by whimsy” to benefit a favored few.

‘Empathy’ in Action
A poisonous doctrine for any judge, much less a justice of the Supreme Court.   (some excerpts follow)

(Although this article doesn’t deal directly with the Colorado Supreme Court, it sheds an important light on the issue of judicial qualifications and attributes desirable in our judges - particularly on the highest court at both the State and Federal levels.  Cross-posted by permission of the author, Rossputin).

Well, we can’t say we weren’t warned. Obama has always said that the Constitution is essentially irrelevant, in the sense that it can and should mean whatever the newest, most liberal generation of activists in judges’ robes says it should mean.

And now we have the Supreme Court nominee to prove that Obama really meant it - and that elections have consequences.

Much fuss will be made over Sonia Sotomayor’s humble beginnings and Puerto Rican heritage, as if those things are qualifications for the nation’s (the world’s?) most important court. However, those beginnings and that heritage will remove the spine from enough Republicans that Sotomayor will have a relatively easy time getting approved.

For the record, I believe that the Senate should generally approve a president’s judicial nominations because that’s clearly a prerogative of winning an election unless the nominee is incompetent or was nominated through corruption, nepotism, etc.

But even a cursory look at some of Sotomayor’s decisions make one realize that she is a dangerous judge and one whose view of the importance of the Constitution is so twisted that she is, in my view, on the borderline of incompetence.

Most media discussion about Sotomayor’s judicial history is turning on a recent case in New Haven, Connecticut, where the city refused to promote firefighters after the results of the test created to judge who should be promoted ended up with no minorities passing the test. White firefighters sued, correctly saying that it was an obvious case of reverse discrimination. It has been widely reported that a highly respect judge on the same court, the Second Circuit Court of Appeals, strongly criticized Sotomayor, saying that the 7-6 majority opinion essentially ignores “the weighty issues” involved in the appeal, particularly the weighty constitutional issues.

The Supreme Court has agreed to hear the case and, with luck, will overturn Sotomayor’s decision from the Court of Appeals…just as they did on a 6-3 vote a few weeks ago in the case of Entergy v. Riverkeeper.

Riverkeeper is a case which should make supporters of property rights and of rational, limited government shudder. In that case, Sotomayor ruled that the EPA was not permitted to perform a cost/benefit analysis of technologies used to protect animals located near power plants. Instead, all that mattered was whether the industry could afford the “best” technology. The Supreme Court overruled Sotomayor, saying that the EPA could choose to use cost/benefit analysis. Can you imagine the implications for government and society if government agencies didn’t just avoid rational cost/benefit calculations from time to time, but were actually not permitted to make them?

Sotomayor has also cited international law or practices in her court decisions, another aspect of her approach which should frighten Americans.

A CNN review of Sotomayor’s rulings which have been heard by the Supreme Court shows that she is usually overruled, and that when she is not she is still often criticized for faulty logic or a faulty understanding of the law.

All in all, Sonia Sotomayor is exactly what we should have expected and feared from Barack Obama: A liberal activist who legislates from the bench, using any twisted logic she can find to squirm through existing law and obviate our Constitution.

Yes, Virginia, elections have consequences…

Link to Original post at Rossputin.com.

What makes a good judge?  According to President Barack Obama, the replacement he’s seeking for retiring Justice David Souter “must be an individual endowed with ‘empathy’.”

A recent article by Mike Rosen in the Denver Post explores the topic in greater depth.  Rosen notes that President Obama proclaimed of his potential Supreme Court nominee that ”‘I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily reality of people’s lives.’  (Oprah, perhaps?)  Compassionate and seductive as this pronouncement may sound to some, it represents a radical and dangerous departure from traditional American jurisprudence.”

“When empathetic judges rule on their feelings, they are exceeding their authority …  The point is that the role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president.  The courts are a co-equal branch of government, not a superior branch.  Their job is not to rule on what they think the law ought to be.”

As noted in a previous post, there is a fundamental difference in principle between those (such as President Obama) who advocate for judges to render decisions based on “empathy”, twisting the law as necessary to reach a preferred outcome (as in recent rulings by our own Colorado Supreme Court), and those who hold judges accountable to exercise their proper function (and sworn duty) to uphold the rule of law. 

ALL citizens of Colorado (and the United States) are entitled to equal treatment before the law.  Judges who rule by “empathy” are playing favorites, “helping” a select few while harming everyone else.  Unless judges are restricted to their proper role as referees, not players, we all lose.