Commentary Magazine


Another Try to Rescue Sotomayor

The excuse machine for Sotomayor’s conduct in the Ricci case never rests because it is, of course, one of her greatest liabilities and least justifiable actions on the bench. The latest defense comes from Ruth Marcus, who claims the poor court had no choice, or had a tough choice, because the city either had to discriminate against Frank Ricci or face a “disparate impact” case by aggrieved African American firefighters who would claim the test had a discriminatory impact on them. Nice try, but no.

First, Sotomayor and her colleagues avoided opining on the merits so we don’t know if this was her rationale. If it was, she owed the parties a full explanation. But alas she was bent on denying Ricci a full decision on the merits so she skipped the full explanation, leaving us to wonder what her motives were. (Marcus concedes: “Frank Ricci deserved to have that claim examined more carefully before having his hard-earned promotion summarily set aside.”)

Second, the city never claimed and was never asked to prove that the test was defective and therefore the basis for a claim of disparate impact by the failing African American test-takers crumbles. You simply can’t be permitted to discriminate against one group of people because another group might raise a fuss, albeit a meritless one. (I discuss the analogy to “customer preference” cases here.)

As Stuart Taylor pointed out, the threat of political pressure, not legal liability, seemed to be at the root of the city’s decision:

The panel set aside the anti-discrimination principle on the grounds that New Haven feared (among other things) that promoting the whites “would subject the city to public criticism” and would probably result in a disparate-impact lawsuit by blacks “that, for political reasons, the city did not want to defend.” [Emphasis added.]

Sorry, but “taking heat in the local media” doesn’t  amount to the Hobson’s choice of discriminating against Ricci or facing a disparate impact lawsuit.

In a real sense, the case before Sotomayor was not a disparate impact issue at all. Although there was a theoretical one which might have been brought by the failing firefighters, the actual Ricci case was simply about disparate treatment. “You, whites don’t get your promotion because there are too many of you whites.” That is disparate treatment plain and simple. We generally don’t allow that — and certainly not on some theoretical argument that some of people might raise a fuss. After all, plenty of people raised a fuss when southern restaurants had to open their lunch counters to African Americans.

The bottom line: it’s hard to fathom what Sotomayor was thinking because she didn’t do what judges are supposed to — explain their legal reasoning. But the half-baked efforts to help her aren’t going to do the trick. She’ll need to convince the Senate that she wasn’t engaging in the sort of race preference/identity politics to which groups she affiliated with for years (e.g. La Raza, PRLDEF) have devoted themselves.

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