The Ricci Case And The Sotomayor Nomination

The Supreme Court just handed down their decision in the Ricci case, reversing with a 5-4 count the lower court opinion that the city of New Haven can refuse to apply a promotions test for firefighters because no African-Americans passed it. The city feared a discrimination lawsuit over the test, but the Court basically waved that away.

What's notable is that this case was previously decided by the 2nd Circuit Court of Appeals by a three-judge panel that included Sonia Sotomayor. And so now we'll hear all about that honky-hating judge reversed again (how does this affect her "reversal rate"?) and the manly men of the Supreme Court helping out those poor white firefighters who worked so hard to pass that test.

Except that Courts of Appeals, who generally follow prior precedent in cases like this, cannot make the sweeping changes that can be made at the SCOTUS level. Far from being a slave to "empathy," Sotomayor followed the law available to her in concurring with the majority decision on her Court. In fact, as Sam Alito wrote in his concurrence today, "But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law . . . And that is what, until today's decision, has been denied them." The Second Court had no precedent on which to rely to offer that enforcement, and if Sotomayor reversed the District Court ruling in Ricci, she would have been relying on sympathy. Which is what her critics say she always relies on.

Tom Goldstein at SCOTUSBlog doesn't expect this to affect her nomination much:

Tom Goldstein: Various comments ask about the effect of Ricci on the Sotomayor hearings. The deicsion will certainly be front and center. Her position is the same as Justice Souter's, so I think it it comes across mostly as an ideological disagreement [...]

Re the intersection of Ricci and the Sotomayor nomination, the Supreme Court opinoins have almost no discussion of the court of appeals' ruling. Justice Ginsburg has a short discussion of how the ruling reflected prior Second Circuit precedent.

But of course, he is correct about the decision being front and center. Those on the right wing will certainly spin this as proof positive of Sotomayor's incompetence, or her hatred of white people, etc. This is basically the only thing that could possibly derail her at this point, and the opposition will come up with whatever distortions necessary to try to ensure that. But the charge rings pretty hollow and is based on a misunderstanding of precedent.

QED

A lot of people have got to this, but yes, empathy is not some alien notion but a common way of thinking about the role of life experience and how it relates, even to the law, and conservative judges like Sam Alito and Sandra Day O'Connor have invoked life experience and empathy in their judging, including race and gender, and white male conservatives consider themselves perfectly objective automatons uncorrupted by any perspective whatsoever, except when they don't like the law they have to apply under that standard, and then they go on and on about how unfair it all is to white people. This is because they view "the law" as anything reaching their desired outcome, intellectual honesty be damned. It's stupid. You can even play the home game on this.

Not much more to say than that.

Of Empathy, Identity and Double Standards

I've been trying to make this point about Sonia Sotomayor and the empathy talking point, but I don't know if it's come through, so I'll outsource to Ezra:

So far, most of the commentary has focused on Frank Ricci, a dyslexic firefighter who studied endlessly and hired someone to read him flash cards before a tough test that would decide a promotion. Ricci passed, but the test results were thrown out. The reason? Not enough African Americans cleared the exam, and the department worried it would be sued under Title VII. Ricci's tale is troubling. It's hard not to feel for him.

Ricci's experience, however, is not related to the legal questions presented by the case. As Dylan Matthews explains at Campus Progress, Sotomayor appears simply to have addressed the question before the court: That question was whether the county had reason to believe that the test results left it vulnerable to a lawsuit. Indeed, as Dahlia Lithwick and Doug Kendall argue over at Slate, Sotomayor is being attacked for something relatively odd: Rather than empathizing with Ricci, she ruled on the legal issue at hand. And that meant ruling against Ricci.

Conservatives, thus, are in the awkward position of choosing one of two lines of attack. You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can't argue both.

Exactly. And Sotomayor almost makes a fetish of following the law in her opinions, so any question of her use of "empathy" only comes from the very natural way human beings, unlike robots, are shaped by their experiences and points of view.

Which is why the racialism argument is also so bogus, because it assumes that white men have absolutely no life experience upon which to draw.

Taylor's objection is based on two social assumptions that need to be utterly destroyed, the first being the idea that social perspective of white, Christian, heterosexual males are somehow "objective" and uncolored by life experience, and the second being the idea that acknowledging cultural specificity among non-whites is the same thing as assertions of white supremacy by whites. The fact is that many Latinos have faced a specific experience of systemic and social discrimination not shared by non-Latinos, and this experience colors their perspective just as not having it does. If there's anything problematic about Sotomayor's statement, it's that it is as nonspecific about "whiteness" as Taylor's is.

What people like Taylor find so offensive about Sotomayor's statement is that it properly exposes the perspective of white, Christian heterosexual men as specific to their experience, rather than the omniscient eye of G-d they're used to presenting it as. Does anyone seriously believe Dred Scott or Plessy v. Fergueson would have been upheld by any court that had the remotest idea of what it was like to be black or a slave? Or similarly that the court would have held in Minor v. Happersett that being a citizen didn't mean you had a right to vote if you were a woman? Do we really believe that judges in these cases were "simply upholding the law" in the absence of the cultural and social prejudices of their times?

I think this nomination has revealed far more about the conservatives who object to Sotomayor than the nominee herself. They really feel entitled by dint of birth and circumstance, and yet simultaneously feel that they are the most objective, neutral observers possible. Sotomayor provided an uncomfortable truth with that statement, one that her white male detractors refuse to acknowledge. Indeed, they are colored by their perspective and life experience in opposing her - a perspective of perpetual victimhood.

Who's Talking About Excellence?

John Yoo, a guy who said that the President has the right to crush the testicles of a child under the Constitution, dares to criticize Sonia Sotomayor for not being "excellent". Hilariously, he claims that Diane Wood or Elena Kagan would have been fine choices, when in the event of their choice, he would have simply substituted their names for Sotomayor's and put out this template of an op-ed. And Yoo saying that anyone lacks intellectual "firepower" just stretches credulity to the limit.

Predictably, the only case that Sotomayor ever ruled upon, according to the wingnuts, is the Ricci case, which Doug Kendall and Dahlia Lithwick debunk.

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. He studied hard and got the sixth-highest score on the exam—qualifying him for one of the eight open spots. But despite all that, Ricci still hasn't received his promotion, which is the basis of his lawsuit.

What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That's because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci's specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

So why did every report on the case begin and end with Ricci's compelling employment story? Might it have something to do with the fact that the conservative organizations supporting Ricci used his sympathetic tale as the centerpiece of a successful media blitz leading up to oral argument before the court? Could it be that they wanted to make sure the justices understood just how Title VII could impact the lives of ordinary Americans like Frank Ricci? Could they—oh the horror!—have wanted the justices to empathize with Ricci's plight?

Now who's being empathetic?

...Media Matters nails John Yoo. This is from Yoo's review of Clarence Thomas' book:

As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support.

Plenty more at the link.