Distortions and Contradictions in the Discussion of the Firefighter Case.

In my last commentary entitled Philosophical and Life Experiences in the Shaping of Supreme Court Views, which I distributed on July 21, I concluded with the comment, “Next time I will discuss the much-maligned Ricci (aka the firemen’s) case. 

This case needs discussion because it is the one case out of the hundreds that came before Judge Sotomayor in the years that she was on the bench that most raised the ire of her critics.

These critics were the ones who screamed that empathy had no place in the law, that decisions must be based on the law and only the law. They then turned around and attacked the decision in the Ricci case by citing the poor dyslectic firefighter who having bought all the books and studied extra hard did not get his promotion, even though he scored high enough on the test to be entitled to it. Without question we can have empathy for this firefighter. But what about the law? Did all these strident voices, who loudly denounced the concept of empathy, once discuss the law? Anybody who followed the debate knows that the law was the last thing they were interested in. See here.

But let us look what in fact happened. I assume that at least some are interested in some degree of consistency and in examining the facts. It has no bearing on the confirmation of Judge Sotomayor for she will be confirmed. But if we are to have any kind of intelligent discourse about the law we need to step back and examine the real facts.

The strident voices have denounced Sotomayor for her decision. But, of course it wasn’t her decision. It was a decision of a three-judge panel of the Court of Appeals and it was unanimous. Three judges all reached the same conclusion. If we count the decision of the District Court it makes it four judges. After the panel handed down the decision a petition was filed for the whole Court of Appeals to hear the case known as a “rehearing en banc.” According to Rule 35 of the Court  “A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” There are a total of 12 active judges on the Court. So when the hearing en banc was denied it meant that at least 6 judges decided it did not warrant such a rehearing. Thus we can see that a total of at least 10 judges did not feel the decision was wrong. Doesn’t that suggest that at the very least there was a basis in the law for the decision? What is the law that the court was interpreting? It was Title VII of the Civil Rights Act of 1964. For the text of the act click here. But to listen to the braying one wouldn’t even have known that there was a law passed by the elected Congress that the court was interpreting. That this law provides in Section K 1A: “An unlawful employment practice based on disparate impact is established under this subchapter only if-

     (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity…”

     Ever since that law was passed a test which has a disparate impact on race must be discarded unless it can be shown that the questions asked are “job related for the position in question and consistent with business necessity;…”

     Apparently the District Court, which is the trier of the facts, found it had not been demonstrated that many of the questions on the test were job related. It then surveyed the law and in an opinion 48 pages long analyzed the facts and the law, cited and reviewed at least 19 previous decisions, including prior Supreme Court decisions, and decided the examination violated the statute. For those few who may actually want to read all the decisions cross references can be found here.

Now the critics of Judge Sotomayor argue that judges who are reversed by the Supreme Court should not be elevated to the High Court, ignoring of course that this would eliminate most, if not all, judges sitting on our courts. Furthermore, The Supreme Court decision was by its common 5-4 majority that chose to ignore its own precedents and changed the law, as it has existed since the passage of the statute.

   I will grant that we can argue the wisdom of the statute; we can argue the wisdom of the policy, but to suggest that Sotomayor or the three judge panel which adopted the opinion of the district court as being sound on all counts, is in some way not applying the law, is nothing less than deliberate distortion, sophistry and demagogy.

  The dishonesty of Judge Sotomayor's critics is apparent. And what makes the attacks even more deplorable is that one of her severest critics was Senator Sessions of Alabama, who was rejected by the Senate when Reagan nominated him for a district court in Alabama, because he was a known racist. According to the Huffington Post he “once quipped that he ‘used to think [the KKK] were OK’ until he found out some of them were ‘pot smokers;’ and he routinely referred to an African-American attorney who worked for him as ‘boy’ -- even once warning that attorney to ‘be careful what you say to white folks’ after Sessions overheard him chastising a white secretary.”

  This is typical of the crowd that tries to represent itself as being in favor of a non-racist society.