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GUEST COLUMN: Stick to principles in Sotomayor opposition




Political parties often speak of the need for having a "big tent" as a metaphor for outreach to people of varied philosophies and beliefs. As a registered Republican, Joseph Trainor's letter of July 8 makes me wish the tent were just a mite smaller. I don't know Mr. Trainor, but the words he put on the page spoke to me of someone coming to the right conclusions for all the wrong reasons.

The Supreme Court got it right in their decision on Ricci v. DeStefano, the New Haven firefighters case. The case eventually reached the Court because New Haven faced a ridiculous choice based purely on trying to meet federal legal requirements on employment equity. They tied themselves in knots trying not to harm one group or another; their legal advisors told them that they were required to discriminate!

Rather than getting wrapped up in the rhetoric of victimization of whites, I wish Trainor had focused on the notion that, in designing the test used to determine promotions for firefighters, New Haven engaged a professional examinations firm to ensure that the questions were wholly job-relevant and race- and gender-neutral. The process was true to the original meaning of affirmative action - to take positive action prior to hiring which ensures that the candidate pool fairly contains any and all persons who may be qualified and has a hiring process conducted without bias. As one kind of Republican, I think that definition of affirmative action upholds what is best in our country.

Returning to Ricci, the Court correctly found that New Haven erred when, having administered a fair test and getting a predominantly white group of men earning the top scores on the test, they threw out the results and gave promotions based on race. The lead plaintiff, Frank Ricci, is a fellow with dyslexia who quit a second job in order to study his proverbial buns off to ace the exam, which he then did. To be told, after the fact, that he and others would be denied a promotion purely because he is white was abhorrent.

The situation gets surreal when you realize that one of the plaintiffs, the Hispanic Lt. Ben Vargas, was also denied promotion because not enough black candidates earned high enough scores. New Haven believed their hands were so tied by federal anti-discrimination laws that they felt they had to discriminate against one minority member in order to promote a member of another minority! We really have to be more thoughtful about who we send to Washington. I again part ways with Mr. Trainor when he invites Sonia Sotomayor to leave the country. I would certainly prefer that she leave the judicial bench, but I can't see how the graceless wish to send an American-born citizen "back to Puerto Rico" does anything but provoke a well-justified backlash.

Judge Sotomayor is proud of her long, extensively documented history of thoughtful leadership on and off the bench. It is clear she deeply believes that it is appropriate for judges to create the outcomes they feel to be most just, irrespective of the underlying law. President Obama nominated her for exactly that reason.

These created outcome rulings become a part of our corpus of law. Republicans generally believe that the creation of law should be exclusively the province of elected officials, not the unelected and unanswerable judiciary. If we, as a people don't like the outcomes we're getting under the law, it is our job to elect representatives who will take the appropriate legislative action.

I quite like the metaphor of Lady Justice. Recall that she holds the scales of justice in one hand and a sword in the other. Recall, too, that she is wearing a blindfold to symbolize justice without regard to the race, gender or status of the persons before the court. Judge Sotomayor, in effect, proudly proclaims that she will not wear that blindfold. I fear going before a court where I cannot trust that my strict observance of the law will be sufficient. While I believe Sotomayor's intentions are good, her confirmation would, nonetheless, be a huge step down the wrong road.

We get to influence these outcomes. We get to vote every two years. At the moment, primarily out of frustration about wars and the economy, the country has put the legislative and executive branches in the hands of Democrats. They're doing exactly what they promised.

For my part, I hope the Republican party can field some candidates with thoughtfully nuanced, conservative beliefs, rock-ribbed integrity and genuine humility. They might look very appealing when we see the results of the hubris now on display in Washington.

CHRISTOPHER CHALOUX lives in Attleboro.

 


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View Comments » 10 comment(s) « Hide Comments

Edmund.Dantes wrote on Jul 19, 2009 10:33 AM:

" Since you asked:

http://www2.maxwell.syr.edu/plegal/scales/court.html

The better reference source is LEXUS/NEXUS - West Publishing, but I don't have a business or income that would allow me to afford the subscription. "

Anna D wrote on Jul 19, 2009 10:13 AM:

" And as I recall the process, it only takes one reviewing Supreme Court justice to reject a case. There are 4 liberals on the Court. Just because they don't take a case doesn't mean it wasn't decided badly. And please provide a citation proving that most circuit cases are appealed to the Supreme Court. "

Anna D wrote on Jul 19, 2009 10:09 AM:

" Another CNN list:
(1) Ricci v. DeStefano 530 F.3d 87 (2008) -- reversed.
(2) Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)
(3) Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted (the supremes unanimously said her legal reasoning was faulty; imagine that?)
(4) Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0
(5) Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- Upheld 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)
(6) Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)
(7) Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)

By CNN's count, that's 5 reversed and one upheld but for all the wrong reasons. "

Anna D wrote on Jul 19, 2009 10:05 AM:

" Here are 4 cases; I have to look up the other one more time:
(1) Wrote the 2008 opinion supporting the City of New Haven's decision to throw out the results of a firefighter promotion exam because almost no minorities qualified for promotions. The Supreme Court overturned it.
(2) Sided with environmentalists in a 2007 case that would have allowed the EPA to consider the cost-effectiveness of protecting fish and aquatic life in rivers and lakes located near power plants. Was overturned by the Supreme Court.
(3) Supported the right to sue national investment firms in state court, rather than in federal court. Was overturned unanimously by the Supreme Court.
(4) Ruled that a federal law allowing lawsuits against individual federal government officers and agents for constitutional rights violations also extends to private corporations working on behalf of the federal government. Was overturned by the Supreme Court.

Source? That bastion of right wing anger, CNN. "

Edmund.Dantes wrote on Jul 18, 2009 8:23 PM:

" Sorry to disappoint, but the three overturned included the New Haven case. And the majority of cases aren't heard by the Supreme Court because the court members do not feel that it is warranted, Nearly all cases that make it to the circuit court level are appealed to the Supreme Court. The court refuses the vast majority of those appeals. The numbers posted are public record, the record stands and, again, 98 percent of her rulings either stood or were upheld on appeal. Please don't use partisan motives to twist facts into a case that simply won't hold water. Stop using Limbaugh or any other "pundit for pay" for information. factcheck.org is at least non-partisan and doesn't do things for ratings, unlike, Olberman, Maddow, Beck, Limbaugh, etc. "

Anna D wrote on Jul 18, 2009 7:05 PM:

" The only cases that matter are the ones that are appealed. Maybe those 228 were never appealed because the losing party gave up? That happens a lot. With the New Haven firefighters case, I believe that's 5 of 7 overturned by the Supreme Court and so, OK, it's not 80%. It's 71%. "

Edmund.Dantes wrote on Jul 18, 2009 5:16 PM:

" Rather than wait for an answer, here's the link to the Newsweek/factcheck.org Web page on this very topic, created to counter what was apparently a typical Rush Limbaugh exaggeration:

http://www.newsweek.com/id/199955

A total of five (out of 232) rulings of Judge Sotomayor have ever been challenged and reviewed by the US Supreme Court and, of those, only three, or 60%, of those five rulings were ever overturned. That means that in 228 of the rulings she issued while on the US Court of Appeals for the Second Circuit were never reviewed because there was no cause cited by the justices of the Supreme Court for doing so. For those into percentages, that means that, including the two cases reviewed and NOT overturned by the US Supreme Court, Judge Sotomayor's decisions stood or were upheld on review 98% of the time. I wonder why these details weren't included in Anna D's original posting? "

Edmund.Dantes wrote on Jul 18, 2009 5:07 PM:

" Forgive my apparently missing something, but I can't recall a single senator from either party presenting evidence that 80% of Judge Sotomayor's rulings have been overturned on appeal. Given the purely partisan political nature of Judiciary Committee hearings since the days of Robert Bork, I would assume that any Republican senator bent on shaming the current administration would have made such an appalling record public but, curiously, none did. Just where does this information come from and why is it being bandied about as though it is fact. Perhaps, just perhaps, this is a purely partisan political attack and NOT a truly informative posting? "

Anna D wrote on Jul 18, 2009 9:03 AM:

" Sotomayor's courtroom decisions have been reversed 80% of the time, because she has been wrong on the law. If you were wrong at your job 80% of the time, you'd have no job and would be on the street. She is an affirmative action appointee who can't construct a cogent and sensible legal argument. She has admitted herself that she was an affirmative action beneficiary. She is incompetent and incapable and unqualified. However, she will be gracing our Supreme Court very soon. All you Obama voters, it's your fault. You voted for the affirmative action president (who was clearly unqualified for the job and is proving that every day), and he will fill the halls of government and the judiciary with other affirmative action incompetents. "

Edmund.Dantes wrote on Jul 16, 2009 11:33 AM:

" Mr. Chaloux's sentiments on believing that only elected officials should make laws is admirable, but flawed. It overlooks a very key component...lack of guts. Whent he Republic was founded, the majority of those serving in elected offices never intended to make a career out of elected office. Therefore, their legislative decision making was predicated both on the demands of their constituents AND their personal beliefs and wisdom. Sometimes the latter overrode the former with mixed results, but such decisions were made without concern for whether they would be re-elected.

Today's legislators do not follow this same, admirable path. Most, if not all, want lengthy, even life-long government positions (and the perks which go with them). As a result, they refuse to take bold action even when a majority knows it's right. An independent judiciary, not having to worry about popular public opinion, has, rightly or wrongly, replaced the more bold legislative initiatives found during the first thirty years of the Republic. Brown v. Board of Education was a much needed kick in the pants to quailing legislators who refused to accept the notion that African Americans were equals and thus deserving more than the spurious "separate but equal" farce that was a previously timid court's Plessey v. Ferguson decision.

Legislating from the bench may be wrong, but until legislators regain their courage to do what's right rather than what's politic, it's all we have to insure equality for everyone. "