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The Spin Is Wrong: No Justice Agreed with Sotomayor

The pro-Sotomayor media spin is that although she may have gotten it wrong in the New Haven firefighter case, she was no “worse” than four other Justices. Tom Goldstein’s argument is representative of this line of thinking:

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.

One problem: it is flat out wrong. In fact, not a single Justice would have affirmed the decision by the Second Circuit. A number of conservative commentators (e.g., here) figured this out.

Stuart Taylor summarizes:

In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related. Justice Ginsburg also suggested clearly — as did the Obama Justice Department, in a friend-of-the-court brief — that the Sotomayor panel erred in upholding summary judgment for the city.

In short, Sotomayor got it so wrong that not a single Supreme Court Justice would have said “Affirmed.” Moreover, her shoddy effort at slipping the entire matter under the rug is not one I suspect would have been replicated by a single sitting Supreme Court Justice or most circuit court judges.

The Senate should not be taken in by the spin. The Judiciary Committee needs to ask some tough questions, starting with: How did you miss a prima face violation of Title VII?

Whatever they think of Ricci, Senators can’t say they are unclear about what Sotomayor believes. She believes in not protecting Frank Ricci’s right to prevail on merit in his chosen profession – so long as there is a single advocate of identity politics ready to threaten a government official with litigation. And in case there isn’t one, Sotomayor’s colleagues at PRLDEF will be happy to supply the threats.



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