Wednesday, July 01, 2009

Sotomayor is Racist, but Supreme Court Chooses to Punt on Real Constitutional Issue in Firefighter Case...

It seems Sotomayor is a racist after all, along with those who went with her and the majority opinion of the lower court in the firefighter case, if you read into what various Supreme Court Justices wrote, both on the majority and the minority. First, some information from the Washington Post:
The Supreme Court yesterday restricted how far employers may go in considering race in hiring and promotion decisions, a ruling that puts workplaces across the nation on notice that efforts to combat potential discrimination against one group can amount to actual discrimination against another.

The court ruled for white firefighters in New Haven, Conn., who said city officials violated their rights when it threw out the results of a promotions test on which few minorities scored well. The case drew outsize attention because President Obama's nominee for the high court, Judge Sonia Sotomayor, had been part of a unanimous panel on the U.S. Court of Appeals for the 2nd Circuit that endorsed a lower-court ruling upholding New Haven's decision.

"No individual should face workplace discrimination based on race," Justice Anthony M. Kennedy wrote for the five-member majority.
Those who oppose Sotomayor contrasted the court's 89 pages of opinions, concurrences and dissents with the 134-word summary judgment from Sotomayor and the other judges on the panel. Sen. John Cornyn (R-Tex.), a member of the Senate Judiciary Committee, called the Supreme Court's decision a "victory for evenhanded application of the law" and said that "all nine justices were critical of the trial court opinion that Judge Sotomayor endorsed," an assertion the White House rejected.

So much for that Latina wisdom, eh Sonia?

Even Ruth Bader Ginsberg, who tried very hard in her dissent against justice to defend Sonia and talk about empathy and such, found Sonia and the gang of judicial activists who ruled in the lower court to be wrong.
In footnote 10 of her dissent, Justice Ginsburg states: “Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order.” But because the majority saw no need to remand, Ginsburg explains “why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”

In other words, Ginsburg doesn’t believe that final disposition of the case is appropriate. She and her fellow dissenters therefore believe that Sotomayor and her Second Circuit colleagues and the district court were wrong to grant summary judgment to the City of New Haven.

Ginsburg believes that Sotomayor and the other judges below applied the wrong standard: “The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.”

Even though this is a great day for equal rights, it is not the final battle, as the court didn't deal with the main issues at hand, but rather played narrow legalese. Justice Scalia, in his concurring opinion stated that there's a day of reckoning coming, and that is the equal-protection clause cannot co-exist with federal laws that find discrimination based on disparate impact rather than unequal opportunity. And the court didn't have to decide that question to resolve this case and it's going to have to decide it at some point. So what happened here in this case is that the majority decided the case strictly on statutory grounds under Title VII of the 1964 Civil Rights Act.

"The majority held that under the statute, an employer cannot refuse for race based reasons to enforce the results of a test just because it might be sued. It can only refuse it if it can show that it would probably be held liable if sued. The court also said that under the legal principles of the Civil Rights Act, New Haven would not have been held liable and therefore the firefighters win the case."

In other words, we punt the real constitutional issue. Rather than asking if such laws that have case studies looking to right past wrongs are in fact discriminatory on their own basis, we find a narrow way to play with statutes and ignore the larger constitutional and ethical question!

This was the right decision, but not a totally right decision in terms of dealing with the issues that ultimately will need to be dealt with if we are to truly get to equality instead of the discrimination of affirmative action.