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Archive for the ‘Sotomayor’ Category

ricciIn Ricci v DeStefano (2009) the American  Supreme Court ruled in a 5 to 4 decision that white firefighters in New Haven, Connecticut were denied promotion based on their race. It has become a well-known case of reverse racism.

Ricci was the lead firefighter in the case; DeStefano was the mayor of New Haven.

This overturns Judge Sotomayor’s decision in a lower court. The case made the press in part because the right was using it to frame Sotomayor as a racist.

The white justices were evenly split, 4 to 4. Clarence Thomas, the only black judge on the court and once the head of the Equal Employment Opportunity Commission under President Reagan, sided with the white firefighters. But he did not write a decision as he often does in civil rights cases.

The decision could make it harder to prove racism in hiring since it will have to be based more on motive (hard to prove) and less on outcome (much easier to show).

In 2003 New Haven gave a test for open positions for lieutenant and captain in its fire department. No blacks scored high enough, even though they had on past tests. New Haven threw out the test fearing blacks would take it to court for using a racist test. Blacks could have done that under Title VII of the Civil Rights Act of 1964 – and most likely would have since the new test favoured whites more than even past tests did.

But it was a no-win: when the city threw out the test, the white firefighters who had scored high took it to court – for reverse racism.

Frank Ricci spent 8 to 13 hours a day studying for the test and spent over $1,000 to buy the books and get them read onto tape since he has trouble reading.

But before you cry for him, first guess how many of the 21 captains in the New Haven fire department are black. Answer: 1. Just one: 5% in a city that is 37% black.

Justice Kennedy, who wrote the decision, joined by Roberts, Alito and Thomas, said that New Haven had no “strong basis in evidence” to fear a lawsuit and, even so:

Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.

Justice Ginsburg, writing the dissent, said of the white firefighters:

they had no vested right to promotion. Nor have other persons received promotions in preference to them.

Ginsburg thought New Haven was right to fear a lawsuit. She found it laughable that the city, given its history, was racist against whites.

That the right picked this case to accuse Sotomayor of racism is unfair. First, in most cases regarding racism in employment she rules against blacks and Hispanics. No word about those. Second, in Ricci she was merely part of a panel which let a lower court decision stand. She did not write an opinion as to why.

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sotomayorWhat Judge Sotomayor said at Berkeley in 2001:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Many on the right – Rush, Newt, Shelby Steele, Pat Buchanan, etc – have jumped on this as racist. After all, look at how it sounds when you use the old change-the-races-in-a-statement trick:

I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life.

Sounds bad.

Most on the left defend her by saying that if you read the whole 4000-word speech you will find that that is not quite what she meant.

Well, no: that is what she meant. The speech in fact is about just that point: how her colour and sex affects her judgement of the law. She noted how few judges were female, black or Hispanic  and how courts on the whole will make better decisions the more such judges they have.

She points out that Oliver Wendell Holmes, a very wise white man who was one of the greatest judges America has ever known, still for all that upheld laws that were unfair to blacks and to women. A mistake she would not have made simply because, unlike Justice Holmes, she knows first-hand what it is like to be a woman and not to be white.

Judges try to be as fair-minded as possible, of course, but they are only human, as was Justice Holmes. White male judges are affected by their colour and sex too. To think otherwise is to throw history and common sense out the door.

What about those white firefighters Sotomayor ruled against in Ricci v DeStefano? Well, what about the many times she has ruled against blacks and Hispanics? You do not hear about that because the loudmouths on radio and television are mostly white men who do not care about those cases. Nor do they fit the “empathy” image the left pushes.

So was her statement racist? Maybe in letter but not in spirit. But if America had been ruled by Latina women for over 300 years and if all but four of the justices on the Supreme Court during the past 200 years were Latina women, so that the law favoured them over everyone else, then, yes, it would have been racist – and boneheaded.

And it would have also been untrue: the powerful are largely blind to the bad they do; they believe in self-serving lies. The powerless and the outsider, on the other hand, have every reason to see things as they are.

The change-the-races-in-a-statement trick, while it appeals to common sense and colour-blind fairness, overlooks how history, power and racism itself have made the races unequal, so much so that when a white man says something it means something different than when a Latina woman says it.

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SotomayerSonia Sotomayor (1954- ), one of the top judges in New York City, was chosen on May 26th 2009 by Barack Obama for the Supreme Court.

The Senate will hold its hearing, probably in July. Barring any ugly surprises, she is expected to pass easily: Democrats control 59% of the Senate. She would be the first ever Hispanic on the court and the third woman.

Sotomayor has degrees from top universities, Princeton and Yale, and has more experience as a judge than anyone named to the Supreme Court in the past 70 years.

Her views are centre left, well within the mainstream. She is closer to the centre than Obama himself. She will not change the balance on the court since she is taking the place of David Souter, also centre left.

The first female justice, Sandra Day O’Connor, once said a wise old man and a wise old woman will reach the same conclusion in deciding cases. To which Sotomayor said:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

And about being unaffected by her colour:

I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of colour we do a disservice both to the law and to society.

Being Catholic she would make the court two-thirds Catholic – in a country that is mostly Protestant.

Sotomayer has not yet ruled on hot issues like abortion, the death penalty or gay marriage.

The case that is most likely to hurt her is Ricci v DeStefano: the New Haven fire department gave a test for some open positions for captain and lieutenant. When no blacks scored well it threw out the test: otherwise the black firefighters would take it to court for using a racist test. Instead the white ones did, arguing racism the other way. Sotomayor agreed with New Haven.

Sotomayor is Nuyorican – a Puerto Rican who grew up in New York. Her parents came from Puerto Rico to New York in 1944. Her father was a welder, her mother, a nurse. She grew up in the public housing projects of the Bronx (Soundview, Bronxdale Houses, Co-op City). Her family was the only one in the neighbourhood with an encyclopedia (Britannica). By 1964, at age ten, she knew she wanted to go into law like her hero on television, Perry Mason.

She went to Catholic school and then to Princeton on a scholarship. Princeton was like another country. She was in over her head, but she got help and graduated at the top of her class. She went on to Yale to get her law degree and was editor of the law review.  She came back to New York to practise law. In 1992 President Bush, the first one, made her a judge.

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