Supreme Court Strike Down Sotomayor Decision

[Dino Velvet]

http://www.foxnews.com/story/0,2933,529438,00.html?sPage=fnc/us/supremecourt


Justice Rule in Favor of White Firefighters; Strike Down Sotomayor Decision
Monday, June 29, 2009
By Lee Ross

WASHINGTON — In a case that is at the center of the upcoming Sonia Sotomayor confirmation hearing, the Supreme Court announced its opinion in favor of white firefighters that Sotomayor had twice ruled against.

Monday's 5-4 opinion in this reverse discrimination case is already championed by conservatives as a judgment against Sotomayor's jurisprudence in this racially charged case.

Justice Anthony Kennedy authored the opinion in favor of Frank Ricci and his fellow firefighters who sued New Haven, Conn. after city leaders tossed out the results of a promotions exam because no African Americans scored well enough to merit advancement.

"The City's action in discarding the tests violated [federal law]," Kennedy held.

The city argued its action was prompted by concern that disgruntled African American firefighters would sue. But that reasoning didn't hold sway with the Court's majority. "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."

This decision, like so many of the close cases before the high court divided along its familiar ideological lines. The Court's more liberal members joined Justice Ruth Bader Ginsburg's dissent which she read from the bench. "The white firefighters who scored high on New Haven's promotional exams understandably attract the Court's sympathy," she said. "But they had no vested right to promotion."

Last year, Sotomayor, a judge on the New York-based Second Circuit Court of Appeals twice ruled against the white firefighters. Her decision in this case has prompted significant criticism—especially from conservatives who have charged that Sotomayor didn't show empathy towards them. The criticism is also a thinly-veiled attack on President Obama who said he would look for a Supreme Court nominee who showed empathy towards litigants.

Sotomayor will undoubtedly be asked about this opinion at her confirmation hearing that will start in two weeks.

Good. Reverse discrimination is still discrimination.

[trish]

Once again Roberts' activist court breaks precedent and rewrites the law.

http://www.nytimes.com/2009/06/30/us/30impact.html

[SugaSweet]

I can not believe any large Metropolitan,State,or Federal agency would go by just a written test.Unless the test takes into account such skills and aptitutes:years of service,specific skills and training for promotion,education,and applicants work history I see it as yet another model of typical government stupidly.We had (USPS and Customs Service) a test which included military time,education,skills such as electronic,logistic,financial and past supervisory experience with any test taken for promotion.
I can proudly say that the USPS was an equal opportunity promoter.They took the most stupid members of all races and promoted them,as they were usually someones relative or part time sexual associate.If you were educated,they would offer you the most unGodly shifts and postions as far as 1500 miles from your home.Doesn't matter to me:I am retired as an individual and USPS will soon be retired as a business as well.

[q1a2z3]

Once again Roberts' activist court breaks precedent and rewrites the law.

http://www.nytimes.com/2009/06/30/us/30impact.html


It's getting harder and harder to be white in America. Go back to PR where you belong sotomayer.

It's amazing how no one questioned if the test was too hard for black people. Seems like the white guys studied - so did one Hispanic.


How far does the test have to be dumbed down.

[trish]

Sotomayer is an American. She belongs right here at home. It's amazing the test for leadership in the field was an entirely written exam that had no component which actually tested real time decision making in the field, skill or leadership abilities.

[notdrunk]

Sotomayer is an American. She belongs right here at home. It's amazing the test for leadership in the field was an entirely written exam that had no component which actually tested real time decision making in the field, skill or leadership abilities.

A number of black firefighters did pass the test; however, none of them had a high enough of score to be promoted because the promotions only went to the individuals that scored the highest. The exam was 60% written and 40% oral. The promotions only went to the high scorers because of an agreement with the city and the firefighters union. New Haven tried to make the examination "race-neutral" but still no black firefighters scored high enough to be promoted.

Basically, New Haven panicked when they found out that no blacks would be promoted. The city jumped the gun and created a clusterfuck.

[trish]

There were no field examinations and promotion decisions ignored performance records. (BTW, how does one insure that oral examinations are not racially or gender biased?) Regardless of the intent of the examination to be "race-neutral" the examination proved to have disparate impact. By law, that was sufficient legal reason to set it aside. Sotomayor's decision was merely keeping legal precedent. The Supreme Court did not deny the exam's disparate impact. The reason this case went all the way to the Supreme Court is simply the fact that Roberts saw it as an opportunity to upset precedent and rewrite law... something that should be left to the legislature. It's a clear case of judicial activism...something conservatives say they're against. Their practice shows otherwise.

[notdrunk]

Oral exams are more subjective than written exams.

Roberts joined with Kennedy and he didn't write a concurrence. Scalia wrote the conservative concurrence and he wasn't joined by another justice. Scalia came to the conclusion that disparate impact could be a violation of the Constitution. Disparate impact is still constitutional; however, the standard of proof as been rised. Cities cannot come up a lame excuse like New Haven did (e.g., the fear of lawsuit).

Conservatives would not see this decision as judicial activism because of the whole reverse discrimination thing,

[trish]

Fear of a lawsuit is a lame way framing the city's action. The reason was that the examination had disparate impact and the appropriate response, according to the law, was to set the test aside. If this reason is so lame, why did the case make it to the Federal Court of Appeals in the first place? Of course some conservatives would've liked to have done more damage (Alito, for example). Roberts did what he could to rewrite the law and preserve his reputation.

Look, I don't care if the legislature wants to rewrite the laws on disparate impact in light of New Haven. But this was a case of judicial activism, which is of course counter to the judicial philosophy conservatives pretend to espouse.

[notdrunk]

It got to the Second Circuit Court of Appeal because the plaintiffs' arguments were rejected by a Federal judge. The Chief Judge of the Second Circuit Court of Appeal wanted the full court to hear the case; however, the vote was 7-6 against hearing it. In his dissenting opinion, he wrote that the case should go to the Supreme Court. It is interesting case and the Supreme Court knew it had to say something on the matter.

Disparate impact to "them" (Conservatives) is a violation of the Constitution because it goes against the Equal Protection Clause of the 14th Amendment. The Supreme Court avoided that question but Ricci specifically asked about it.

[trish]

…the plaintiffs' arguments were rejected by a Federal judge.Exactly, because the Federal judge applied the law.
The Chief Judge of the Second Circuit Court of Appeal wanted the full court to hear the case; however, the vote was 7-6 against hearing it.Again, because six of the seven judges saw the precedent clearly applied to case.
In his dissenting opinion, he wrote that the case should go to the Supreme Court.Of course that’s not why it went to the Supreme Court. The Supreme Court picks it’s own cases largely influenced by the choices of the Chief Justice, in this case Roberts.
Disparate impact to "them" (Conservatives) is a violation of the Constitution because it goes against the Equal Protection Clause of the 14th Amendment. The Supreme Court avoided that question but Ricci specifically asked about it.Even Roberts knew that he couldn’t get the votes to rule that the current law on disparate impact was unconstitutional. In fact I don’t think Roberts believes that himself. However, Constitutional or not, Roberts did seek to limit the scope of prior application and succeeded.

I’m not saying, and the court didn’t say anything, about the intent of the examination. I am saying, and the court agreed, that the examination had disparate impact. This case is simply another example where Sotomayor, along with many other judges, followed the letter of law and the legal precedent. This case, along with many others in her record, is evidence that she is legally conservative (in the sense that she is not an activist). Even so, many conservatives this week will try to use this case to paint Sotomayor as an activist liberal judge. But if any judges were activist in this case, it was the five in Robert’s court who went against precedent and found in favor of the plaintiff.

[notdrunk]

The City of New Haven engaged in intentional discrimination when they threw out the scores. There needed to be some sort of balance between disparate impact and disparate treatment. It was easier for one group to claim disparate impact to "win" when at the same time another group claimed disparate treatment. The majority of the Supreme Court recognized this and they acted appropriately. Sotomayor (and others) focused on one part of the law and ignored another part of the law.

The scope of disparate impact was not limited by the ruling that much. The "good faith" excuse just cannot be used anymore. Now, governmental agencies and businesses have to tighten their thinking caps even some more when coming up with a "fair" examination.

[trish]

Now, governmental agencies and businesses have to tighten their thinking caps even some more when coming up with a "fair" examination. :shock:

How does that follow? The promotions, based on the shitty test that New Haven designed were upheld! This test did not examine leadership capacity, real time decision making in the field, in the field situation assessment etc. The Supreme Court decision allows other cities to lower their standards to those of New Haven's.


The City of New Haven engaged in intentional discrimination when they threw out the scores.

This is the conservative spin, of course; but it was not the finding of any of the courts that heard this case, including the Supreme Court.


It was easier for one group to claim disparate impact to "win" when at the same time another group claimed disparate treatment. :shock:

Why would this be the case rather than the other way around??

The plaintiff had to appeal all the way to the Supreme Court because precedent was against him...all the way. His only hope was to appeal to the empathy and political disposition of the Robert's five. There's nothing wrong with this, he won. But let's call a heart a heart, shall we? The Robert's court broke with precedent and turned around more than a decade of legal interpretation.

[notdrunk]

How does that follow? The promotions, based on the shitty test that New Haven designed were upheld! This test did not examine leadership capacity, real time decision making in the field, in the field situation assessment etc. The Supreme Court decision allows other cities to lower their standards to those of New Haven's.

The test might of been shitty; however, the City of New Haven got outside assistance to come up with the examination. The outside assistance, I/O Solutions, is known for formulating tests that are not racially bias (whatever that means). The firefighters were given months to study for it. The City of New Haven leadership wanted some black firefighters to be promoted. It is obvious. If some of those 22 black firefighters that passed were apart of the top scorers, the shitty test would of been certified.



This is the conservative spin, of course; but it was not the finding of any of the courts that heard this case, including the Supreme Court.

Not the conservative spin. Justice Kennedy wrote that the city did unlawfully intentional discriminate against the white firefighters (and Hispanic firefighters). There is lawful discrimination and unlawful discrimination.


Why would this be the case rather than the other way around??

Disparate impact claims something (e.g., examination) has a bigger impact on a group. This can be proved by looking at the numbers and etc. Disparate treatment claims that an employer treats one group differently from another group. You cannot directly prove that the employer as treated a group differently; therefore, you have to look for circumstantial evidence.




But let's call a heart a heart, shall we? The Robert's court broke with precedent and turned around more than a decade of legal interpretation.

I agree it broke the liberal precedent that held governmental agencies and businesses can engage in intentional discrimination on good faith if they think disparate impact ligation would occur. Nevertheless, conservatives see it as correcting the law...almost

[trish]

Your response does not show how the Supreme Court decision would tighten the requirements on future examinations. You didn’t even address that issue. Instead you chose to address who designed the test and how much time workers had to study for it.

Not the conservative spin. Justice Kennedy wrote…
Regardless of what Kennedy wrote, the court did not find the city guilty of disparate treatment.

You cannot directly prove that the employer as treated a group differently...
Nonsense. That’s exactly counter to your claim in this very case.

I agree it broke the liberal precedent that held governmental agencies and businesses can engage in intentional discrimination on good faith if they think disparate impact ligation would occur. Nevertheless, conservatives see it as correcting the law...almost.
Then correct the law legitimately…in the legislature. Breaking precedent IS judicial ACTIVISM, whether you view it as justified or not.

[notdrunk]

They will have to come up with examinations that gives them the best possible outcome they want (e.g., increased minority representation) and it does actually happen.


Regardless of what Kennedy wrote, the court did not find the city guilty of disparate treatment.

Kennedy claimed that the city would of been subjected to disparate treatment liability by the white firefighter.



Nonsense. That’s exactly counter to your claim in this very case.

Huh? You cannot directly prove unless you read their minds or they openly admit they discriminate. 99.99% of employers would not that. Apparently, the white firefighters tried to use circumstantial evidence when they brought up disparate treatment.

[hippifried]

Now correct me if I'm wrong, but didn't the SCOTUS find fault with the law itself & not with the applications of precident by the lower courts? The courts follow precident. The Supreme Court sets precident. So I guess I'm asking: Did they find fault with that final ruling in particular, or did they go further back down the line? There's a difference.

[notdrunk]

Now correct me if I'm wrong, but didn't the SCOTUS find fault with the law itself & not with the applications of precident by the lower courts? The courts follow precident. The Supreme Court sets precident. So I guess I'm asking: Did they find fault with that final ruling in particular, or did they go further back down the line? There's a difference.

Basically, they changed the rules for employers. Individuals can still sue for disparate impact. It is just harder now for employers to prevent a lawsuit from happening. Under the new rule, the City of New Haven cannot disregard the scores because the fear of disparate impact ligation from black firefighters. There needs to be "a strong basis in evidence" to disregard the scores.

[hippifried]

That didn't answer my question. I find it hard to believe that the SCOTUS decision isn't something more than defining a single term.

I keep hearing this "cheer" about how the Supremes overturned Sotomayor. Simple question: Is that what really happened?

[trish]

No, it did not find that she missapplied the law as was current at the time of her decision. It did set new precedent. I believe in the words of the majority opinion they "set a new standard."

[JelenaCD]

Well you have to look at who she is replacing , she can't be more liberal then a member of the ACLU , it's a plus for the republicans to remove a ACLU judge !

[trish]

Souter was appointed by Bush I. Time has shown again and again that a conservative Supreme Court justice with an open mind and intelligence enough to learn from his experience on the bench will always abandon the ill-conceived conservatism of the party which appointed them. I suppose you can thank God Roberts’ mind is completely closed as well as Scalia’s, whereas Aletto and Thomas are just idiots.

[hippifried]

Well you have to look at who she is replacing , she can't be more liberal then a member of the ACLU , it's a plus for the republicans to remove a ACLU judge !Most lawyers are members of the ACLU. Dollars to donuts that Sotomayor is a member. Got something that shows who is or isn't a member on the SCOTUS? I think there might be a good chance that even Scalia carries a card, or did before his appointment. Is there a problem with that? Do you have a clue what the ACLU is?

[trish]

Most lawyers indeed are members of the ACLU, including prosecutors. It is an organization devoted to upholding the rights of individuals as granted by the U.S. Constitution. Even a libertarian can get behind that. The only people against the ACLU are those who are against the universal application of Constitutional protections and those who have been told to be against the ACLU.

I'm inclined to think that lawyers who rise to the bench will give up their membership, at least those judges who are likely to hear cases brought by the ACLU. But I have no data on this. I know Jalena claims Souter has a membership but I can find no reliably independent confirmation of this. I do know that Ginsberg was once an active member and that Scalia has participated in the discussions at the last membership conference.

I don't think of my own membership as having anything to do with my political inclinations, I simply think it's worthwhile supporting an organization that actively supports my rights and yours.

[hippifried]

Oh. So you're a "card carrying member of the ACLU"?!?
Ya pinko!

I don't see why anyone would drop their membership when appointed or elected to the bench. There's really no conflict. That'd be like saying they should drop membership in the bar association because the lawyers are down there making their arguments. The bar's a private lawyer's guild, who took licencing authority upon themselves, & nobody outside the law industry has ever challenged it.

If this is what the opposition has, Sonya Sotomayor just might get those 75 or 80 votes in the Senate.

Since the republicans really don't have anybody who can seriously challenge for the Presidency in 2012, I figure President Obama will probably make at least 2 more appointments after this one. Maybe 3 if Scalia can't stay away from the donuts. That would be the only conservative replacement. It might take another democratic President in 2016 to actually turn the court around a bit. By 2020 or 2024, Scalia & Thomas will probably both be gone. Republicans have controlled the court appointments since the '50s. This is only the 3rd appointment by a democrat since LBJ.

[trish]

Someday someone is going to goad Thomas into formulating a question. The strain of the additional effort may cause his tiny brain to implode thereby sucking his puppet-master,Scalia, into the vacuum never to be seen again. I'm hoping it happens within the next two years.

[notdrunk]

Since the republicans really don't have anybody who can seriously challenge for the Presidency in 2012, I figure President Obama will probably make at least 2 more appointments after this one.

That is not exactly true. According to the recent Rasmussen poll, Romney would give Obama a run for his money. They were tied in the poll.