Supreme Court reverses Sotomayor ruling

WSJ

The firefighters sued the city of New Haven and the case was heard on appeal by the 2nd Circuit Court of Appeals. Judge  Sotomayor was one of the three appeals court judges to hear the case and she ruled against the firefighters as part of a  2-1 appeals court vote that went against them.

 

Yesterday the U.S. Supreme court reversed Sotomayor's ruling and found in favor of the firefighters.

That the reversal was a 5-4 decision will give Sotomayor defenders some ammunition with which to defend her but not much because polls show a huge 2/3 majority of the American people agree with the Supreme Court ruling and oppose Sotomayor's original ruling. The swing vote on the court, Anthony Kennedy voted with the four conservative judges to comprise the majority.

 

But while the 5-4 decision will give Democrats some cover in attempting to defend Sotomayor, the decision is going to give opponents of Sotomayor's nomination even more ammunition. Even if it's not enough to stop the confirmation,(and even though Democrats have the votes its too soon to tell) it is certainly going to be fodder for the next election cycle and the Republicans will take full advantage, especially since Sotomayor's ruling is at odds with where most Americans are on the issue.

 

The most surprising part of the decision for me was the opinion of Justice Ruth Bader Ginsberg in her dissent. Justice Ginsberg wrote that none of the twenty firefighters had a "vested" right to expect promotion. This is true. They didn't have an inherent "right" to expect promotion but they did have a right to expect promotion based on passing a test given by the city of New Haven for the express purpose of choosing people qualified for promotion.

 

Ginsberg further seemed to affirm the kind of thing that conservatives have long accused liberal judges of doing, most of the time without validity but here it was plain for all to see -- and that is legislating from the bench.

 

Ginsberg's dissenting opinion found fault with the kind of test New Haven gave, saying in effect that she didn't think "a pencil and paper" test was a good way to judge people for promotion as firefighters. Maybe yes,maybe no, but is that the issue? Does Justice Ginsberg really have any place  applying her opinion of what kind of test the New Haven Fire Department should use in choosing applicants for promotion? Was there any proof or even allegation that the test was biased?   Even if you wanted to argue that there were flaws in the test, ( and one would have thought that the city of New Haven might have explored that possibility before denying those who passed the test their promotions),  her minority opinion flies in the face of common sense and the role of a judge.

 

The  city of New Haven could have taken it upon themselves to investigate to see if the test was biased in some way. They chose not to. Instead they threw out the test results and promoted black applicants who failed the test and denied promotion to white applicants who passed it in the name of diversity. Most people would agree that this is an application of promoting the benefits of diversity run amok.

 

With the majority of public opinion believing that Sotomayor's original decision was unfair, it's going to put the Democrats on the judiciary committee on a political hot seat during the hearings. How the Republicans will use the ruling remains to be seen but they will surely put Democrats trying to defend Sotomayor's ruling on the defensive.

 

The other big question revolves around Obama and what he will say. Will he defend her original ruling? Or will he support the court's ruling? Or will he say nothing? So far the answer is, nothing.

 

As the country's first mixed race president, the fact that Obama has yet to issue a statement regarding a ruling that is going to have a sweeping affect throughout the country on the issue of race is conspicuous by its absence, though absent any core belief of his own, (or one he is willing to state) anything he says is going to have meaningful political consequences. If he supports her original ruling he flies in the face of overwhelming public opinion and a Supreme Court decision. If he supports the Court decision he substantially weakens Sotomayor's changes of confirmation. For moment the White House has decided to say nothing and one assumes they are trying to craft some kind of statement that can find some middle ground though there seems to be none.

 

One thing is certain -- Sotomayor will be grilled about the legal basis used for her original decision and her answers could determine whether she will sit on the Supreme Court. They will also have substantial political consequences for both Democrats and Republicans.