Monday, June 29, 2009

The Ricci Ruling

Not surprisingly, the Supreme Court overturned a lower court ruling in the case of Ricci vs. DeStafano, aka the “White Firefighters of New Haven Case.”

“The city’s action in discarding the tests violated Title VII,” the court held in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964. The majority said the city’s fundamental arguments were “blatantly contradicted by the record.”

Monday’s decision in Ricci v. DeStefano, No. 07-1428, came on the last day of the court’s term and was one of the most closely watched discrimination cases in years. The ruling is sure to be closely studied by personnel departments and their lawyers for indications of how far employers can go, and under what circumstances, in considering race in decisions on hiring and promotion.

And while the case concerned public employees, the ruling is also likely to affect private employers, since Title VII of the Civil Rights Act covers private employers as well as public ones, according to Prof. Sheila Foster of Fordham Law School. (Professor Foster teaches anti-discrimination Law and has been involved in litigating cases under the Civil Rights Act.)

The long-term implications will work themselves out, but in the short term the right-wingers are using the ruling to try to further prove that Judge Sonia Sotomayor, one of the judges on the lower court and President Obama’s nominee to replace retiring Justice David Souter, is a racist and unworthy of being confirmed.

Roger Clegg of the Center for Equal Opportunity suggested that the ruling “gives the Senate Judiciary Committee a lot to ask about” and that it brings to light her past statements on this issue.

He was joined by Gail Heriot, a professor at the University of San Diego School of Law in the insistence that each of the nine Justices had rejected Sotomayor’s reasoning in her Second Circuit decision.

A couple of points here. First, Judge Sotomayor was not the only judge on the lower court, so taking her solely to task is a tad unfair, and, not to be too picky, but the decision 5-4, not 9-0. If these folks can’t even count, then why do we even bother to listen to them?

Second, I’m not a lawyer, but my understanding is that a Court of Appeals usually rules on procedural matters of the lower courts and errors of law, not on the case itself. In other words, they don’t second-guess the guilt or innocence of a defendant but on whether or not the prosecutor or judge committed errors in the conduct of the trial. Therefore, if Judge Sotomayor and the rest of the panel had reversed the lower court’s ruling, it would have to have been on a procedural matter, not on the merits of the case. So if they had reversed it because they thought the ruling was wrong, wouldn’t they have been guilty of “judicial activism” and making laws from the bench? In not overturning the lower court, Judge Sotomayor, along with the rest of the panel, was being exactly what the righties want her to be: a judge who follows the law.