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A Troubling Decision, a Troubling Speech, and a Troubling Nomination

Posted By Hans von Spakovsky On May 27, 2009 @ 10:08 am In Legal | Comments Disabled

Imagine if you can a situation in which a white federal judge approved the clear and obvious discrimination engaged in by a small Southern town in denying black firefighters promotion by throwing out the results of a civil service examination. Only black firefighters did well enough on the racially-neutral exam to merit promotion, but the city decided to scrap the exam and not promote the successful test takers because none of them were white.

This same white federal judge also gave a speech at a prominent Southern university in which he said: “I would hope that a wise Caucasian man with the richness of his experiences would more often than not reach a better conclusion than a black male who hasn’t lived that life.” In the same speech, the judge opines that white males engage in judging differently than black males “[w]hether born from experience or inherent physiological or cultural differences.”

Does anyone doubt that if a president nominated that same federal judge to be on the U.S. Supreme Court, that his nomination would be still-born and that the president would be quickly (and rightly so) embarrassed into withdrawing the nomination?

Of course, that has not happened – or has it? Because if you simply change the races and ethnic groups being discussed, that is exactly what President Obama has done. In fact, Judge Sonia Sotomayor claimed in a speech at Berkley in 2001 that “wise” Latina women would make better decisions than white men and that those differences may be based on inherent genetic differences, something so outrageous that I still have a hard time believing that she could have said such a thing.

And in a case pending before the U.S. Supreme Court, Ricci v. New Haven, Judge Sotomayor approved the outright dismissal without trial of the discrimination claims of 19 white firefighters (one of whom suffers from dyslexia) and one Hispanic firefighter against the City of New Haven, Connecticut. There is no question that the city threw out the results of promotional exams because they were unsatisfied with the race of the successful exam takers – because no blacks (and seemingly not “enough” Hispanics) had scored well enough to be promoted. Judge Sotomayor also engaged in procedural trickery to try to bury the case and avoid Supreme Court review. The district court opinion was unpublished, so Sotomayor and her two fellow judges at the Second Circuit Court of Appeals affirmed the district court’s opinion in a summary one paragraph order. Only after the 3-judge panel learned that the opinion would not be reviewed by the full Second Circuit did the panel withdraw that order and publish an opinion that incorporated the entire district court opinion as the operative law of the Second Circuit – using procedural shenanigans to make her views approving racial preferences the law of the entire Circuit.

Should discriminatory views of ethnicity be accepted if the individual with such a view is Hispanic? Should discriminatory treatment be accepted if it is aimed at whites (and Hispanics)? Not in our culture and our society, and certainly not in our legal system where we believe in the rule of law and the equal treatment of all individuals under the law. Judge Sotomayor’s views on race as expressed in her public speaking and her actions in the Ricci case are extremely troubling. They make it imperative that the Senate fulfill its full duty under the “Advice and Consent” clause of the Constitution to carefully and thoroughly examine Judge Sotomayor’s principles, character, and temperament before deciding whether she is qualified to sit on the Supreme Court.


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