Just Ricci For A Story On Sotomayor

By: Andrew Cohen
Topics: Sonia Sotomayor

(AP Photo/Alex Brandon)

One by one, and not unexpectedly, the initial talking points against Supreme Court nominee Sonia Sotomayor are shriveling into dust. She's a "liberal, activist" judge? Sorry, Sotomayor's long record on the 2nd U.S. Circuit Court of Appeals doesn't come close to supporting that silly label. She's a "reverse racist" who's part of the "Latina KKK"? Try again. Her written opinions don't support that reckless charge, either. She's got "temperament" problems? Nope. Her colleagues (and law clerks) say she is tough, prepared and aggressive in her questioning—sort of like two-thirds of the current Supreme Court. Besides, since when is being rude to an attorney worthy of scorn?

It would be funny, if it weren't so sad, to chronicle the arch of coverage since last Tuesday's announcement that the White House had selected Judge Sotomayor to replace Justice David H. Souter, who is retiring from the Court at the end of the term. In the absence of any meaningful "gotcha" information about her character, credibility or credentials —no surprise since Judge Sotomayor was twice approved by the Senate and has been on the federal bench for 17 years—the debate over her qualifications has instead magnified small matters and turned them, artificially, into big ones.

For example, the blathering class has grandly conflated the significance (to her confirmation, anyway) of Judge Sotomayor's position in Ricci v. DeStefano, a sort of reverse discrimination case out of Connecticut that was heard a few months ago and is about to be decided by the current Justices. Along with most of her appeals court colleagues, Sotomayor half-heartedly (and unfortunately without much analysis) backed the City of New Haven in its ham-handed efforts to try to promote black firefighters at the expense of white firefighters. Her 134-word ruling almost certainly will be rejected by a majority on the Court.

Imagine that—a Supreme Court nominee is poised to ascend to that bench just as one of her recent decisions is overturned by the very colleagues with whom she will now resume her career. It's just like an American Idol smack-down only without the mean British guy. No, wait, there are plenty of windy protagonists around to tell us that they are "very concerned" about Sotomayor's position in the Ricci case. They are her conservative critics who are trying to use those 134 words in that appellate decision to portray Judge Sotomayor as a result-oriented hack.

It all makes for a great story—conflict, drama, intrigue. The truth, however, is that the case tells us a lot less about the nominee than you think. Under the ambiguous law as it now exists, Ricci is a closer case than many analysts suggest. At least three Justices and perhaps four will side with Judge Sotomayor's position. New Haven faced a terrible choice in the case-- throwing out the firefighter test or inviting a discrimination case brought by black firefighters. The difference of opinion over the legal import of that choice is as unsurprising as is the continuing debate over race-based policy.

And, even if the Court overturns her, the fact is that federal appeals court judges frequently get overturned by the Supreme Court. Indeed, each of the currents Justices, all of whom were once federal appeals court judges, were during that time reversed by the Supreme Court. Show me an appeals court judge who is never overturned and I'll show you a tepid appeals court judge. It comes with the territory and Judge Sotomayor's record of reversals is not materially better or worse than some of her fellow All-Star colleagues.

Most importantly, as Thomas Goldstein of Scotusblog has meticulously pointed out, Judge Sotomayor has consistently rejected racial discrimination claims. So while her critics will be able to point to Ricci and have their Perry Mason moment, Judge Sotomayor's supporters will be able to answer with scores of other rulings in which men and women alleging all sorts of discrimination have failed to persuade her to grant them relief. If she is wrong about Ricci, it's the exception to her record and not the rule. But you wouldn't know that by some of the shallow coverage of the case.

It will be embarrassing for Judge Sotomayor if she is, indeed, reversed on the brink of her ascension to the Court. I'm sure it's the last thing that she and the White House want. But as far as precluding her confirmation, or telling us anything truly meaningful about her position on cases that touch upon race in America, it's the equivalent of having a zit on your wedding day. Everyone notices, it doesn't spoil the day, and in the end no one really cares or even remembers.

(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.

23 Comments Have Your Say
Email Story Send to a Friend
Share This Tell Your Friends
Tweet This Tweet This
More Share It

Add a Comment

See all 23 Comments


by noloyalisti June 1, 2009 7:12 PM EDT: I love being complimented by being called a liberal. Who wants to stay buried in the past with no progress, no plans and no future.

The white wing wackos (www) fear Sotomayor because she is a woman and smart and also a minority. Then again the www fears EVERYTHING.; Reply to this comment


by heavynne June 1, 2009 5:46 PM EDT: Justice has never been blind in the United States. Justice has never been equal in the United States period. It's kind of like, the pot calling the kettle black.; Reply to this comment


by aviator49 June 1, 2009 5:11 PM EDT: Yo, liberals, it's not the "radical right" that has problems with Sotomayor and the Ricci case. It is your average American, tens of thousands of firefighters and other civil servants around the country. Cohen does a snarky job of whitewashing this case and Sotomayor's role in it. But the issue is not Sotomyaor's views on the law so much as her ethics. It looks like she, aware of her ambitions for the Supreme Court, tried to bury this case to keep it under the radar and end it quietly. She didn't succeed as Judge Jose Cabranes called her out for it. For the liberal wing nuts, it's unfortunate that Cabranes is Hispanic, for otherwise they'd be claiming he was another oppressive white male from the dominent class picking on a hispanic judge. It is Sotomayor's ethics that are at issue when it comes to Ricci and Cohen's attempt to deflect from that serious issues, wrapped as it is is sacrastic derision, is nothing more than an a liberal partisan's attempt to sanitize Sotomayor. If she tried to bury that case, she should be sent packing back to the Second Circuit and denied promotion, just like she denied those heroes their promotion for reasons of rank poltiical self-interest.; Reply to this comment


by noloyalisti June 1, 2009 5:07 PM EDT: Like I said earlier, the lizard-brained reactionary conservatives would vote against Jesus himself if Obama nominated Him for the Supreme Court.; Reply to this comment


by mjtimber June 1, 2009 3:08 PM EDT: p_syrus,

Exactly, as I elaborated on in a prior post. Ergo, looking at a rate is irrelevant. If we want to take it on a case by case basis, and evaluate the legal reasoning applied, so be it. But I have yet to see anyone AGAINST Sotomayor do so. Instead, they have appealed for empathy on Ricci's behalf. Kind of hurts their argument. If they can find some legal precedent with which to rebut her decision, so be it. Otherwise, it's the pot calling the kettle black.; Reply to this comment


by p_syrus June 1, 2009 2:03 PM EDT: Supreme Court average on appeal is 74% overturned. ...
Posted by mjtimber

Since SCOTUS has the freedom to decide for itself which cases it will choose to hear, assignment as a SCOTUS case is not typically automatic. The cases so chosen are frequently those which elucidate some subtle yet significant aspect of law which may not have been properly addressed by a lower court. It stands to reason that there would be a high rate of overturning of lower court cases heard as, under the circumstances, the court tends to select only the "questionable" cases to be ruled upon.; Reply to this comment


by netfx June 1, 2009 1:47 PM EDT: I find it both amusing and appalling that the radical Right is having a hissy fit over Sotomayor's nomination. It's as though every President who ever appointed a judge to the federal bench didn't appoint someone who was likely to make rulings that were compatible with the ideological orientation of that President, his administration and his party. It's as though Justices Scalia, Thomas, Roberts and Alito weren't picked for the SCOTUS by Republican presidents precisely because they were devout Conservatives who past judicial conduct demonstrated not only a clear Conservative bias but the willingness to legislate from the bench on civil rights, abortion, second and fourth amendment rights, labor unions, separation of church and state and issues relating to big corporations. It's as though the supposedly unbiased 5-4 right-wing majority on the court didn't circumvent several lower courts as well as the majority of the American electorate in 2000, in stopping the vote recount in Florida, aligning itself behind fundamentalist whackjob Katherine Harris and Republican Governor Jeb Bush, and awarding the Presidency to Conservative Republican George W. Bush. It's as though Dubya didn't try to appoint ultra-right-winger, Karl Rove dirty tricks co-conspirator and fawning bush sycophant Harriett Meiers to the SCOTUS. And it's as though the fear and smear tactics that are being trotted out (yawn) in an effort to demonize Judge Sotomayor weren't resoundingly repudiated by the American people in the 2006 and 2008 elections. Keep it up 'wingers', at the rate you're going you'll never win public office again outside the deepest, darkest recesses of the Bible Belt. Hip hip hooray!!; Reply to this comment


by omigodimatroll June 1, 2009 1:46 PM EDT: Grandly blathering, and conflating some of her opponents' criticisms, Mr. Cohen announces at the the get-go that "talking points against...are shrivelling into dust." For him, apparently, "liberal activist judge" is a (downright) "silly label." For me, not so much.

I suspect Ms. (Mrs.?) Sotomayor would not brand herself as an "LAJ," while at the same would find nothing offensive in the terms liberal, activist, or, for that matter, community organizer.

Here's hoping that she paid her taxes. Here's hoping that she makes her children proud. Here's hoping that she's the only appointment Mr. Obama gets in his one, and only, term as our President.

One can hope, eh?; Reply to this comment


by cydygitt1 June 1, 2009 1:27 PM EDT: BLOGs by defenition don't have to be objective.
Posted by jimh_listserv
-----------------------------

And we've learned over the past 8 years that certainly republican'ts can only be highly-partisan and never objective!; Reply to this comment


by mjtimber June 1, 2009 1:15 PM EDT: Supreme Court average on appeal is 74% overturned. Most number's I've seen have Sotomayor at 60% (3 of 5). As mentioned, Alito was at 100% overturned (2 of 2). Regardless, the number of cases is so small as to be irrelevant. It doesn't even warrant statistical analysis. Sure, each case should be looked at. But if we do that, we see the following: 96 discrimination cases, 78 rejected. Of the remaining, most were unanimous decisions. Now, she did have one opinion that could potentially be perceived as racist. She was the lone dissenter in ruling against the NYPD -- of course, you would have to conclude from this that she's a white supremacist, but still, it's possible.

http://www.salon.com/opinion/greenwald/; Reply to this comment