9-0 vs Sotomayor

Last week I said that in the news of Monday, June 29 there "were two notable developments which suggest Obama may be more left than he was generally perceived last year."

One of those was the President's statements about Honduras. The US could presumptively not play the role of an "honest broker" after Obama declared Zelaya to be the only legitimate president simply because henceforth the US could officially only deal with one side (Zelaya). State department officials would refuse to meet with representatives of the new government in Honduras (and indeed that has been the case). Furthermore, "the interim government that replaced Zelaya estimates it already has been denied about $200 million in suspended credits. The United States has cut $16.5 million in military assistance and warned a further $180 million in other aid is at risk". In recent days, however, the US has been acting more even-handedly and realistically, facilitating negotiations in Costa Rica even though the US itself is "not present in the talks."

But the other news item from June 29 remains, namely, the US Supreme Court decision in the Ricci case, the same case Obama's USSC nominee Sonia Sotomayor had ruled on earlier. Senate hearings begin this Monday.

The decision in most of the media was described as a 5-4 decision to overturn Sotomayor. But in fact what put Sotomayor outside the mainstream was not her decision to not rule for Ricci and the other white firemen. The real problem was that Sotomayor apparently thought a summary decision, without detailed reasons and without further empirical inquiry into the bone fides of the city of New Haven's claims, was sufficient. Judge Jose Cabranes, a Clinton appointee and member of the arguably radical LatinoJustice PRLDEF, criticized the opinion Sotomayor joined saying it "contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal." Sotomayor was criticized by a fellow left leaning Latino judge, in other words. And what really puts her offside is the fact that

If you read Ruth Bader Ginsburg [writing for the 4 dissenting USSC judges], you'll find out it's a nine-zip decision because even those in the minority found that the 2nd Circuit botched this totally by not even having a trial. They just found for New Haven in summary judgment.

Those are Rush Limbaugh's words. However much Rush may overstate the case, the bottom line is Sotomayor should have at least ordered further proceedings. See Stuart Taylor Jr in the National Journal. Jonathan Adler, writing on the Volokh law professors blog, notes that "the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about her judgment." Stuart Taylor notes that "The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base." This is a key issue: the city of New Haven had every political reason to discriminate against the white firemen because they lived outside the city limits in the suburbs, whereas the inner city is predominately black.

The bottom line is that either Sotomayor was unable to appreciate the significance of the Ricci case, or, even worse, she did appreciate it and chose to bury it with a summary order such that Frank Ricci and his compatriots were unlikely to ever receive a Supreme Court review. As Stuart Taylor's latest column observes,

...any 2nd Circuit judge who had chanced to find and read the panel's summary order in Ricci would have found only the vaguest indication what the case was about.
But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"
According to 2nd Circuit sources, Cabranes, who lives in New Haven, saw the article and looked up the briefs and the earlier ruling against the firefighters by federal district judge Janet Arterton. He decided that this was a very important case indeed, and made a rare request for the full 2nd Circuit to hold an en banc rehearing.

The difference between Jose Cabranes and Sonia Sotomayor is the difference between a Clinton appointed Puerto Rican judge and an Obama appointed Puerto Rican judge.