The Closet Moderate: Sotomayor, part dos

Wednesday, June 03, 2009

Sotomayor, part dos

As the only lawyer-bloggard among us, I feel embarrassed that FSH was quicker to post on the new Supreme Court nominee than I was. The problem is, I don't much care. The President is from the left, so he appoints a leftist judge to the Court. She wouldn't have been my first pick, even from the left, but he's the President, and unless there's something obviously wrong with her, she'll likely be confirmed.

So, here's the biggest thing wrong with her:

Judge Sotomayor's most documented ruling to date has been in the matter of Ricci v. DeStefano, a race discrimination case from New Haven, Connecticut. The district court ruling is here, and is the best source of info on the subject, since the appellate panel, of which Judge Sotomayor was a part, declined to state its reasoning when affirming the lower court. If you find pdfs cumbersome, here's the gist of it, courtesy of SCOTUSblog:
The petitions for review were filed by 18 individuals — 17 whites and one Hispanic — who took civil service exams for the positions of lieutenant and captain in the Fire Department in New Haven, Conn., in late 2003.

The results of those tests showed white candidates scoring at much higher rates than minority candidates. As a result, Fire Department officials refused to implement the results in actual promotions, fearing that if they did they would violate federal civil rights law — Section VII. They chose to leave the positions vacant, thus leaving out some who would have been eligible for open positions. The appeal contends that the official refusal to carry out the results was a forbidden racially motive action.
New Haven was in a bit of a bind, really. They chose a method of promoting firemen that appeared to all involved to be racially neutral. The results were that a disproportionate number of white people passed. So, if they accept the test results, the black firemen sue under a disparate impact theory. If they don't accept the results, the white firemen sue under the theory of actual race discrimination. So, they choose the dog-in-the-manger approach, and promoted no one.

The problem, as I see it, is that New Haven chose the course of action that made them the agents of intentional discrimination, rather than the one that made the impact of the test completely unintentional. Actual discrimination is banned under the Fourteenth Amendment to the federal Constitution. Unintentional discrimination was banned by a theory invented by the Supreme Court in the seventies, but even in that ruling the Court allowed such tests if they are "reasonably related" to the job for which the test is required. In the case before the Court back in 1971, Griggs v. Duke Power Co., the company was pretty clearly trying to make the test a substitute for the discrimination it had once openly practiced. In the Elm City in 2009, no such motive is apparent. Indeed, the test was specifically selected to be race-neutral. Still, rather than commit accidental acts that result in fewer than expected minority promotions, New Haven chose instead to commit a purposeful act that deprived people of jobs on the basis of race. It is this decision that the district court, and Judge Sotomayor's panel of the 2nd Circuit, endorsed.

Now, not to disappoint, but I think this is a Constitutionally permissible act. The city can't discriminate in hiring or promotion, but who says they have to promote anyone? If they added to the test scores of racially favored candidates, that would be impermissible, but refusing to promote anyone? Why not? New Haven isn't even constitutionally required to have a fire department. They could fire every fireman in the department with out falling afoul of the 14th amendment, so why should they be required to promote anyone? While I promise that I thought of this idea myself, I have to give credit to Orin Kerr* at the Volokh Conspiracy for first publishing that this case
is somewhat similar to the 1971 case of Palmer v. Thompson, where a closely divided Supreme Court refused to invalidate a Mississippi city's decision to shut down several public swimming pools rather than allow them to be racially integrated (as a previous court order required). The Court reasoned that the city was not required to provide public swimming pools in the first place, and that the decision to shut down the pools did not affect blacks "differently from whites." In Ricci, New Haven likewise is not required to provide exam-based promotions to firefighters in the first place, and it could be argued that its action affects all racial groups equally in the sense that firefighters of all races are now ineligible to gain promotion on the basis of the exam in question.

Quite right. But would Judge Sotomayor have ruled the same way had the races been reversed, as in Palmer? Somehow I doubt it.

*In the interests of full disclosure, I must admit I met Orin Kerr while I was in law school, though I doubt he'd remember me.

1 comment:

Silent Cal said...

Lawyer jokes? Am I supposed to be offended? Believe me, I hate lawyers for reasons you can scarcely imagine. Plus the usual reasons, too.