A reverse discrimination lawsuit filed by a group of Connecticut firefighters is shaping up to be the most contentious case in which Sonia Sotomayor participated one sure to provoke sharp questioning when the Senate begins consideration of her nomination to the Supreme Court.
In 2008 Sotomayor was one of three judges on a panel of the U.S. Court of Appeals for the 2nd Circuit who upheld a trial courts ruling rejecting the reverse discrimination claims by 19 white firefighters one of whom was also Hispanic. The plaintiffs claimed that the city of New Haven violated their rights by throwing out the results of an officers promotion exam in which minority candidates received disproportionately low scores.
The substance of that 2008 ruling which the Supreme Court is now considering is proving less problematic than the manner in which Sotomayor and the other two judges on her panel handled the case.
At first they issued only a brief unsigned summary order noting the trial courts thorough thoughtful and well-reasoned opinion" rather than offering a full opinion of their own. Four months later as the full circuit court was about to issue a ruling on whether to take up the case they withdrew the unpublished order and issued an equally brief unsigned opinion.
The full court voted not to review the case but Judge Jose A. Cabranes wrote a dissent in which he suggested that Sotomayors panel failed to grapple with the questions of exceptional importance raised in this appeal."
The case Ricci v. DeStefano is only going to attract more attention in the runup to Sotomayors confirmation hearing. The Supreme Court has already heard oral arguments and is sure to release its decision by early July before the Senate is likely to vote on Sotomayors nomination. She is almost certain to be grilled at her confirmation hearing before the Senate Judiciary Committee about how she handled the case.
Already conservatives have seized on the dissent by Cabranes an appointee of President Bill Clinton to make the case that Sotomayor and her colleagues were trying to bury the case and make it less likely the Supreme Court would review the claims of reverse discrimination.
Why proceed this way unless youre trying to prevent review of these claims?" said Ed Whelan president of the conservative Ethics and Public Policy Center.
On a conference call Wednesday organized by the White House several law professors and appellate attorneys defended how Sotomayor and her two colleagues handled the matter.
The notion youre going to hide an opinion is pretty much nonsense" said Bill Marshall a law professor at the University of North Carolina.
Obama administration officials have tried to put a positive spin on the way Sotomayor handled the case suggesting it is actually evidence of her respect for precedent and judicial restraint. That message was echoed in the White Houses conference call.
She was part of a panel that decided they were bound by previous 2nd Circuit decisions which meant they couldnt make new law" Marshall said.
But Cabranes appeared to undermine the suggestion that the issues in the case were well-settled law when he wrote in his dissent This appeal raises important questions of first impression in our circuit and indeed in the nation regarding the application of the 14th Amendments Equal Protection Clause and Title VIIs prohibition on discriminatory employment practices."
Daniel Schwartz a Hartford attorney and author of the Connecticut Employment Law Blog says theres nothing necessarily nefarious in the way Sotomayor and her colleagues handled the case. Schwartz said that while dispensing with cases using summary orders is not an everyday occurrence but its not an uncommon occurrence either."
Its not like shes doing it on her own" said Schwartz. There were three judges who looked at the lower court opinion and said in essence we dont have anything to add to it."
But Jonathan H. Adler a law professor at Case Western Reserve University said Sotomayor and her colleagues would have been better off issuing a full written opinion.
Because there wasnt clear applicable precedent because it was a particularly difficult legal question it is not the sort of case that seems properly handled with a summary disposition" Adler said.
A reverse discrimination lawsuit filed by a group of Connecticut firefighters is shaping up to be the most contentious case in which Sonia Sotomayor participated one sure to provoke sharp questioning when the Senate begins consideration of her nomination to the Supreme Court.
In 2008 Sotomayor was one of three judges on a panel of the U.S. Court of Appeals for the 2nd Circuit who upheld a trial courts ruling rejecting the reverse discrimination claims by 19 white firefighters one of whom was also Hispanic. The plaintiffs claimed that the city of New Haven violated their rights by throwing out the results of an officers promotion exam in which minority candidates received disproportionately low scores.
The substance of that 2008 ruling which the Supreme Court is now considering is proving less problematic than the manner in which Sotomayor and the other two judges on her panel handled the case.
At first they issued only a brief unsigned summary order noting the trial courts thorough thoughtful and well-reasoned opinion" rather than offering a full opinion of their own. Four months later as the full circuit court was about to issue a ruling on whether to take up the case they withdrew the unpublished order and issued an equally brief unsigned opinion.
The full court voted not to review the case but Judge Jose A. Cabranes wrote a dissent in which he suggested that Sotomayors panel failed to grapple with the questions of exceptional importance raised in this appeal."
The case Ricci v. DeStefano is only going to attract more attention in the runup to Sotomayors confirmation hearing. The Supreme Court has already heard oral arguments and is sure to release its decision by early July before the Senate is likely to vote on Sotomayors nomination. She is almost certain to be grilled at her confirmation hearing before the Senate Judiciary Committee about how she handled the case.
Already conservatives have seized on the dissent by Cabranes an appointee of President Bill Clinton to make the case that Sotomayor and her colleagues were trying to bury the case and make it less likely the Supreme Court would review the claims of reverse discrimination.
Why proceed this way unless youre trying to prevent review of these claims?" said Ed Whelan president of the conservative Ethics and Public Policy Center.
On a conference call Wednesday organized by the White House several law professors and appellate attorneys defended how Sotomayor and her two colleagues handled the matter.
The notion youre going to hide an opinion is pretty much nonsense" said Bill Marshall a law professor at the University of North Carolina.
Obama administration officials have tried to put a positive spin on the way Sotomayor handled the case suggesting it is actually evidence of her respect for precedent and judicial restraint. That message was echoed in the White Houses conference call.
She was part of a panel that decided they were bound by previous 2nd Circuit decisions which meant they couldnt make new law" Marshall said.
But Cabranes appeared to undermine the suggestion that the issues in the case were well-settled law when he wrote in his dissent This appeal raises important questions of first impression in our circuit and indeed in the nation regarding the application of the 14th Amendments Equal Protection Clause and Title VIIs prohibition on discriminatory employment practices."
Daniel Schwartz a Hartford attorney and author of the Connecticut Employment Law Blog says theres nothing necessarily nefarious in the way Sotomayor and her colleagues handled the case. Schwartz said that while dispensing with cases using summary orders is not an everyday occurrence but its not an uncommon occurrence either."
Its not like shes doing it on her own" said Schwartz. There were three judges who looked at the lower court opinion and said in essence we dont have anything to add to it."
But Jonathan H. Adler a law professor at Case Western Reserve University said Sotomayor and her colleagues would have been better off issuing a full written opinion.
Because there wasnt clear applicable precedent because it was a particularly difficult legal question it is not the sort of case that seems properly handled with a summary disposition" Adler said.
