Sotomayor Reversed Again…

The news seemed to be dominated today with the ruling from the Supreme Court in the case of Ricci v. DeStefano. This case, which originated in New Haven Connecticut, pitted a group of firefighters from New Haven against the city in the city’s decision to throw out the results of the promotion examination because of the lack of black firefighters who took the test that were able to gain the necessary score. The Supreme Court’s decision overturned the decision of the lower courts, including Supreme Court nominee Sonia Sotomayor. Republican lawmakers are pouncing on this decision as proof that she is an activist judge on the bench and not fit to become a member of the highest Court in the land.

Frank Ricci

First a bit of quick history. Frank Ricci is part of a group of 20 firefighters—19 of them white and one Hispanic—who challenged in court New Haven’s decision to throw out the results of a 2003 exam for 15 captain and lieutenant promotions. The 15 positions would have been awarded based on the scoring results of the test. The test results would have given 13 of the promotions to white candidates, perhaps two to Hispanics, and none to African-Americans; because of that racial imbalance, the city withdrew the test. The Ricci plaintiffs said that amounted to denying them the promotions because they are white. The city argued its action was prompted by concern that disgruntled black firefighters would sue. But that reasoning didn’t hold sway with the court’s majority.

Lawsuits over race in hiring is not new in the ranks of firefighters. Black firefighters first brought a suit over discrimination in New Haven in 1973. They won. So did minority firefighters who sued Cleveland, Birmingham, St. Louis, New York City, Newark, Bridgeport, Buffalo, Philadelphia, Massachusetts (statewide), San Francisco, Baltimore, and Minneapolis, according to the NAACP Legal Defense Fund. More recently, white firefighters have begun to fight back in court. In 2001, four white men sued the Boston Fire Department for hiring minority candidates who had scored lower than the plaintiffs on a civil-service exam. They were the first to challenge the Boston department’s affirmative-action policy since it had been upheld by the Supreme Court in 1989. In 2004, they won. Last year, a Los Angeles jury awarded two white fire captains $1.6 million in damages in a suit claiming that they had been punished more severely than a minority officer for participating in the same prank. The New Haven suit, meanwhile, has spurred a similar one by white firefighters, also over promotional exams and test scores, in nearby Bridgeport, Connecticut.

The United States Supreme Court decided to hear the case and, today, finally rendered its decision. In a 5-4 vote, which went strictly down the liberal/conservative ideology of the members of the court, reversed the decision of the lower court. The ruling essentially stated that the city did not have the right, under the premises brought forth to the court, to throw out the results to the test. Specifically, the court offered that the city’s reasoning that the results were being thrown out based on the possibility of blacks in New Haven filing lawsuits against the fire department was a violation of law. “Fear of litigation alone cannot justify the city’s reliance of race to the detriment of individuals who passed the examinations and qualified for promotions,” the court ruled. The court further added that the decision being based on race at all was a violation of law.

As a result of this decision, GOP legislators are going on the offensive, insisting that this is proof that Sotomayor is an activist judge from the bench. They also are quick to point out that this is the 4th decision of Sotomayor’s that the court has overturned. This now means that the Supreme Court has heard 6 cases that Sotomayor helped write an opinion. Of those 6, the Supreme Court has overturned 4, meaning that they felt as the the lower court made the wrong legal judgement in rendering their decisions. The court essentially said that these firemen were unfairly denied promotions because of their race.

So now the tough questions. Does this mean anything in terms of Sotomayor’s ability to be an effective justice in the Supreme Court? While the world seems to taking the sheeple facts and opinions without looking, I decided to dig a bit and see what I could find.

First let me say that a 66% reversal rate is an inaccurate way to look at this incident as it pertains to Sotomayor. First, they are only offering up the number or statistic that does not represent her true body of work. Perhaps a better way to add to this would be the fact that she issued over 400 verdicts as a judge, and only 6 of those decisions were deemed possibly wrong enough for the Supreme Court. Of only 6 that were deemed improperly decided, 4 of those the Supreme decided to overturn. So let’s get a more accurate number with that factored in. Of the 400+ decisions rendered by Sotomayor, only 4 have been overturned by the Supreme Court. That is about 1%. Doesn’t seem like she is doing so badly with these numbers, does it? Interesting how the same numbers show a completely different picture when they are presented a bit more honestly.

Second, another thing that seems to get lost on these talks about 66% of her decisions being overturned by the Supreme Court is the reality of how OTHER judges do in this situation. Going back through recent history, The Supreme Court overturns roughly 70% of the rulings in the lower courts. So not only is Sotomayor’s history with the Supreme Court not uncommon, it would seem that she actually has a lower rate of reversals than other judges in the Federal courts. So perhaps people should be congratulating her on the fact that she seems to make solid rulings that are less likely to be reversed than the average.

So the bottom line for me is that the Supreme Court got this case correct in their ruling. It also seems to me that all this conservative bluster about how this shows her to be an activist judge and how this could severely damage her chances of being confirmed are bullshit. Nothing but hot air. I personally don’t like her, and I do think that she has the wrong attitude, history, and agenda for someone who is going to be serving in a position that she cannot be taken out of once she gets in. It isn’t like if we see her acting up as an activist judge, we can do anything about it. She would become untouchable. But I don’t see how this ruling shows anything other than the highest court in the land having the final say in determining interpretation of the law.

So that brings me to the real question that I have for this post this evening. Sotomayor has been accused of being an activist judge, making social policy through liberal decisions. What does anyone else think on this claim? Anyone who has taken the time to look further into the past decisions and ruling from Sotomayor, what have you found? Have you found her to be an activist judge? If so please provide some backup to your claim. I don’t know the answer, but I am hoping that some other folks will teach me more about this possible Supreme Court Justice.

How should we handle activist judges? Whether Sotomayor is one or not, there are certainly many out there who are activist judges, legislating from the bench. California’s 9th Circuit is famous for being an activist court. Vermont is filled with decisions showing activist judges. That is not what a judge is supposed to be, but that has not stopped them from doing so and flaunting it in many cases. What recourse does the public have against a judge that is out of control and who is abusing the power granted them as a judge in a court of law? After all, we argue that the difference in America is that we are a society based on law. What can we do about judges who seem to not be interested in law, but instead are only interested in using the law to further an agenda?

The bigger question comes in the form of affirmative action. Many speaking out today considered this a blow to affirmative action in the United States. I often argue that affirmative action has no place in today’s workplace. We have come to the point where all workers are treated equally bad. I have NEVER been a fan of affirmative action. I am a believer in getting what you earn and what you deserve. So the idea that you get something just because of your skin color completely goes against everything I believe in. I believe businesses should be hiring the best people available for what position needs filled, regardless of skin color, gender, or any other factor. But even if I had ever liked the idea of affirmative action, I would not see the need for it now. The Jim Crowe laws no longer exist. Blacks are not discriminated against in the workplace any more or any less than any other person these days.

We will always see claims that the discrimination is still there. But I have learned these days to simply chalk it up as those folks who are unwilling to take any responsibility for who they are. I have had claims of discrimination leveled against me several times over the years. In every single case, the person leveling those claims was a poor worker and an even bigger pain in the ass. When their performance reached a point where they were terminated, the simply claimed it was all about race. After all, that is a lot easier than telling people that you were simply a piece of shit employee. And I really do think that a vast majority of racial discrimination claims in the workforce fall into this exact type of situation.

The other big question is what is the answer to solving the problem that New Haven faced? They came up with an exam that was intended to test the candidates to find out who was most prepared to be promoted. The unbiased scoring of knowledge and ability resulted in no black candidates being awarded promotions. It seems to me that this was a test designed to find the best candidates, with absolutely no race playing into the equation. But when the results were there, the city found that no black candidates made the cut. This really did put the city in a bind in today’s environment where black activists make every single issue into one of racial discrimination. The city had two choices:

1. Follow the results and ensure that the best candidates get the job in a position where the job performance can literally mean life and death. In this case black activists sue the city and claim that they don’t hire or promote enough blacks in New Haven.
2. Don’t follow the results and ensure that the right racial mix occurs in the promotions. In this case, someone making the decisions in the dangerous everyday life of a firefighter is not the person best suited for making the decisions.

Either way the city was screwed. Personally, if I have a fire at my house, I want the best candidate available to have the spots. I don’t give a crap what their race is. What I care about is that you put out the fire and save my wife and my cat from the flames. Imagine this scenario in a Special Forces A-Team. We have a sniper assigned to the team that is white and can shoot the wings off a fly at 1000 yards. But we can’t use him as our sniper because we need to have a black sniper to avoid lawsuits. So we end up with the guy who finished 16th best in Sniper school instead of the guy at the top of the class. Which one do you think the rest of the team wants overseeing their movements?

Bottom line…… Screw Affirmative Action. It is old and outdated, and certainly no longer needed in a country where the President of the United States, the Attorney General, the former Secretary of State and Chairman of the Joint Chiefs, and countless other high level positions are held by black Americans.

So what do the rest of you think?