High court backs firefighters in reverse discrimination suit

[DinoDoc]

Almost as if saying the SCOTUS was too vague about this in the past, so the 2nd Circuit shouldn't be blamed for reading it the other way.

That's a misunderstanding of the criticism Sotomayor and her compatriots on the 2nd Circuit have recieved over this case. It was the frivilous matter with which she treated the constitutional issues raised by this case that has raised the ire of others in part. It's generated 4 opinions running nearly 100 pages in total in a case she felt was barely worth discussing at all.

[Zevico]

It's generated 4 opinions running nearly 100 pages in total in a case she felt had already been discussed and considered carefully by the trial judge.

Fixed this for you.

[Kuciwalker]

That doesn't look much better.

[DinoDoc]

Fixed this for you.

That must be why one of her colleagues (a Clinton appointee no less) apoplectic over the unpublished summary judgement.

[DaShi]

DD, is there anything you post that you don't repeat from conservative blogs?

[Zevico]

That doesn't look much better.

Do explain.

Actually, don't. Because there's really very little to explain. The parties deserved a fair hearing, and a consideration of the issues that arose in the case. According to Sotamayor, that's exactly what they got from the trial judge. It happens all the time between judges who sit on the same court. I don't see why it shouldn't happen when the judge comes from a lower court, other than some irrational, status-based objection to an appeals court agreeing with the opinion of a "lowly" trial judge. Either that or he thinks "it's just not done", due to the rarity of this kind of ruling. The matter is of course different if the appeal concerns different issues from those considered at trial and those were left unconsidered. But that wasn't the case.

[Kuciwalker]

She was obviously wrong by a huge margin in either case.

[Flubber]

She was obviously wrong by a huge margin in either case.

Huge margin? Wasn't it 5-4?

[KrazyHorse]

This is why I don't think the SC matters.

By the time questions actually get to them, the issue must be so divisive and political that the court will split 5-4 along ideological lines. Might as well have a coin-flipping machine.

[Kuciwalker]

Huge margin? Wasn't it 5-4?

That doesn't mean it wasn't an issue worth examining... in fact, that makes it more likely a question of interest.

[Ramo]

It's generated 4 opinions running nearly 100 pages in total in a case she felt was barely worth discussing at all.

Unpublished opinions are well within the norm for this court, given the circumstances. More than 90% of similar cases were treated this way during her tenure.

Judge Sotomayor and Race — Results from the Full Data Set
Friday, May 29th, 2009 10:27 pm | Tom Goldstein

I’ve now completed the study of every one of Judge Sotomayor’s race-related cases that I mention in the post below. I’ll write more in the morning about particular cases, but here is what the data shows in sum:

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times. In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court’s order appointing a guardian for the plaintiff, an issue unrelated to race. In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer. A third dissent did not relate to race discrimination: In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.

As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims - i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection.

The numbers relating to unpublished opinions continued to hold as well. In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times.

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

Though the study dealt with panel opinions, Jonathan Adler helpfully reminds me of Judge Sotomayor’s dissent in Hayden v. Pataki — which I discuss here — in which she urged that felon disenfranchisement laws violate the Voting Rights Act.

http://www.scotusblog.com/wp/judge-sotomayor-and-race-results-from-the-full-data-set/

[DaShi]

Yup, this is a non-issue touted by conservative blogs because they have no real argument. Hackery at it worst.

[DinoDoc]

It's generated 4 opinions running nearly 100 pages in total in a case she felt was barely worth discussing at all.

Unpublished opinions are well within the norm for this court, given the circumstances. More than 90% of similar cases were treated this way during her tenure.

The use of per curium opinions of that sort by the 2nd Circuit are typically reserved for questions of law that are well settled and straight foward. That's clearly not the case here.

[Ramo]

The law was well settled. Read the Ginsburg dissent. As as frequently the case, the conservative coalition just established new law. The term that the right throws around to describe this business is "judicial activism" (with a healthy dose of jurisprudence based on empathy).

In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

[...]

In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 per-cent of the City’s 502 firefighters. The racial disparity inthe officer ranks was even more pronounced: “[O]f the 107officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater pro-portion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American. See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed.

[...]

[T]he Court today sets at odds [Title VII's] core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”—something Title VII’s disparate-treatment provision, see §2000e–2(a)(1), generally forbids. Ante, at 20. This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking.

“[O]ur task in interpreting separate provisions of a single Act is to give the Act the most harmonious, comprehensive meaning possible in light of the legislative policy and purpose.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U. S. 609, 631–632 (1973) (internal quotation marks omitted). A particular phrase need not “extend to the outer limits of its definitional possibilities” if an incongruity would result. Dolan v. Postal Service, 546 U. S. 481, 486 (2006). Here, Title VII’s disparate-treatment and disparate-impact proscriptions must be read as complementary.

In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination“because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Cf. Faragher v. Boca Raton, 524 U. S. 775, 806 (1998) (observing that it accords with “clear statutory policy” for employers “to prevent violations” and “make reasonable efforts to discharge their duty” under Title VII).

http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

[Imran Siddiqui]

Yup, this is a non-issue touted by conservative blogs because they have no real argument. Hackery at it worst.

I have to agree here. This is no issue at all. Just confirm Sotomayor and get it over with. Hell, there is a decent chance that on some issues (like criminal law) she may be more conservative than Souter.