One of the more troubling aspects of Sonia Sotomayor’s nomination to the Supreme Court is the degree to which her testimony attempted to conceal or misrepresent her own record. On the topic of Ricci alone, she repeated again and again two falsehoods. First, she insisted that she had not deprived plaintiffs of their day in court because they had filed for an en banc review. Not so. She is taking credit for the sua sponte action by her colleague Judge Cabranes, who dug the case out and insisted that the full circuit consider the matter. Second, she argued that her decision was determined by Second Circuit precedent. Wrong again.
Stuart Taylor takes us through the applicable case law. He explains:
That’s why Judge Jose Cabranes, in the main dissent from the 2nd Circuit’s 7-6 denial of rehearing en banc, began: “This appeal raises important questions of first impression” — meaning questions not controlled by precedent — “in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.”
[. . .]
Later, in the Supreme Court’s June 29 majority opinion in Ricci, Justice Anthony Kennedy said it was unnecessary to address the firefighters’ constitutional claims because their Title VII claims alone were sufficient to win the case. But Kennedy stressed that there were “few, if any, precedents in the courts of appeals discussing the issue.”
The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor’s ruling was her own.
In sum, Sotomayor’s testimony was fundamentally dishonest — an effort to conceal her problematic and highly relevant work as a judge. Those senators who chose to confirm her have reset the bar for Supreme Court nominees to a new and dangerously low level. The message here: if you have enough senators of the president’s party in the Senate, you can spin any story you like and get away with it.