Patterico's Pontifications

6/27/2009

New Haven Firefighter Opinion to be Released Monday

Filed under: Judiciary — DRJ @ 8:48 am



[Guest post by DRJ]

Monday will see the spotlight return to Obama’s Supreme Court nomination of Sonia Sotomayor after Chief Justice John Roberts’ announcement that the Court will issue opinions in the last 3 cases on this year’s docket. One of those cases is the New Haven firefighter case decided by Sotomayor and 2 other Second Circuit judges:

“Sonia Sotomayor, nominated to take Souter’s place, was one of three appeals court judges who ruled that officials in New Haven, Conn., acted properly in throwing out firefighters’ promotions exams because of racially skewed results.

The city says it decided not to use the test scores to determine promotions because it might have been vulnerable to claims the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. The white firefighters said the decision violated the same law’s prohibition on intentional discrimination.”

If the Supreme Court reverses the New Haven case as some expect, it will undoubtedly be the subject of many questions during Sotomayor’s Senate nomination hearings. It will also mean the plaintiff firefighters will have a chance to to prove their claims at trial.

— DRJ

UPDATE BY PATTERICO: I strongly predict a reversal and think it will be an issue in Sotomayor’s hearings, as it should be.

21 Responses to “New Haven Firefighter Opinion to be Released Monday”

  1. Would Sotomayor be less qualified for promotion by virtue of her wrongly-deciding Ricci v. DeStefano — or because she may have sidestepped its constitutional claims in the cause of keeping Title VII as a fair hiring tool?

    I take it those are the implications.

    Handicapping her nomination and the politics is irresistible. But what’s the opinion of merits of the case from the three lawyers who comprise the blog’s central writers?

    steve (39c0cb)

  2. I strongly predict a reversal and think it will be an issue in Sotomayor’s hearings, as it should be.

    OK.

    What reasoning and logic abandoned her?

    steve (39c0cb)

  3. I agree with the dissent from the denial of en banc review by Judge Cabranes, who criticized Sotomayor’s panel for failing to address the relevant constitutional claims, and lazily adopting wholesale an opinion that did not address the core issues.

    Patterico (cc3b34)

  4. You mean a PC outcome is not the goal? I thought the law was whatever our betters tell us it is. I’m so confused.

    Chris (a24890)

  5. You mean a PC outcome is not the goal?

    Proceeding with the results of the test would have landed New Haven in court under Title VII, anyway. They had contrived a policy of fighting fire with fire and bugged out when it got warm.

    Seems a good bet that Justice Kennedy will agree the complaining firefighters should have a chance to prove their claim at trial.

    steve (39c0cb)

  6. Steve,
    Is a written opinion when upholding discrimination based upon race too much to ask for? I’m not sure that you and I disagree on the merits. Regardless, failure to at least put the rationale for dismissing the firefighters’ claim into writing is gutless and we are not out of line in asking why it wasn’t done.

    Chris (a24890)

  7. It will be interesting to see how deeply the decision and legal arguments from the court is tainted by ideology.

    DCSCA (9d1bb3)

  8. Seems a good bet that Justice Kennedy will agree the complaining firefighters should have a chance to prove their claim at trial.

    I’d bet a lot of cash on it.

    Don’t be utterly shocked if the majority gets more than 5 votes. If it’s 8-1 or unanimous, that would be pretty embarrassing for Sotomayor.

    Patterico (cc3b34)

  9. If it’s 8-1 or unanimous, that would be pretty embarrassing for Sotomayor.

    And for DCSCA, apparently.

    Steverino (69d941)

  10. “If it’s 8-1 or unanimous, that would be pretty embarrassing for Sotomayor.”

         With some people viewing EVERYTHING from a political perspective (and in my opinion liberals do this much more than conservatives), is there a chance that some SCOTUS justices may vote on this case depending on how they view their votes as potentially affecting the pubic’s and the senate’s consideration of Sotmayor? If so, which justices do you think might be more likely to let their votes be so swayed?
         Me, I think Breyer and Ginsburg might be.

    Ira (28a423)

  11. #9- Speak for yourself. I’m not keen on some of her publicized comments, particularly those on videotape, but that’s what the Senate confirmation process is for and she’ll have an opportunity to explain her comments before the Judicary Committe and the nation. But if the SC overturns her decision, as Patterico notes, it will be an embarrassment.

    DCSCA (9d1bb3)

  12. Ira,

    I honestly don’t think any of the Justices would change their positions because of Sotomayor’s participation in the appellate decision, but obviously I don’t know that for sure.

    DRJ (cdbef5)

  13. Nickel-boy, I’ll say my mind whenever I feel.

    If you inferred from my statement that I think you’re a Sotomayor supporter, then you aren’t nearly as clever as you think yourself to be.

    Please don’t try to tell us that your comment at #7 wasn’t hinting that you’d claim the justices’ arguments were ideologically, rather than legally, determined.

    I know your M.O. here.

    Steverino (69d941)

  14. What if Justice Kennedy – the man who will be deciding this case – figures that Sotomayor will win Senate confirmation in any case, thus the safest political act would be to join the 4 liberals and uphold the 2nd Circuit decision?

    It’s not as if we can trust the man to make a reasoned decision on the merits.

    Brian (79fe76)

  15. I honestly don’t think any of the Justices would change their positions because of Sotomayor’s participation in the appellate decision, but obviously I don’t know that for sure.

    I completely believe this is what has happened. This is a slam-dunk discrimination claim and they couldn’t write a minimalist, narrowly-tailored, opinion? I smell liberal rats.

    I want to be wrong, but somehow, this will be seen as a 6-3 or 7-2 decision to give Sotomayor cover.

    Anything short of 8-1 will not reflect poorly upon her in the minds of those who matter – Senators, and the State media. Her actions were a travesty in this case, but she will not be made to pay a proper price.

    Ed from SFV (dde255)

  16. While I don’t think they will change their ruling based on Sotomayor’s hand in the decision, I think it is entirely possible that they will hide every pen, pencil, crayon and keyboard from Justice Scalia. :)

    Scott Jacobs (d027b8)

  17. That’s funny.

    DRJ (cdbef5)

  18. I predict a concurrence. There is a rat but leaving that aside I believe the court fears the executive branch and won’t want to rock the boat.

    Ralph (e0eb85)

  19. It will be a reversal but without much fanfare. The Court will not reach the Constitutional issues because there was no resolution on the merits at the trial court level. The Court will find that there was a disputed issue of material fact with respect to the City’s motivation for invalidating the test — that the Plaintiffs were entitled to a jury trial on the question of whether the decision was pretextual, and whether the real motive was to advance the political interests of the mayor who relied upon the minority community for political support.

    The district court judge held that even if it was pretextual, the city was justified in tossing the test in order to avoid a challenge by the minority firefighters who would not have been promoted. The fact that the suit would have likely been meritless didn’t factor into the trial court’s calculation — avoiding any suit, meritless or not, was held to be justifiable.

    The Supreme Court will hold that avoiding meritless litigation is not a sound basis for taking the action that the City took. It has to defend it’s personnel actions when they are legally and factually defensible.

    This decision will probably not say much about the 2nd Cir’s avoidance of the constitutional questions, but will instead take the district court’s decision-making to task. It might even be 6-3 or 7-2.

    WLS Shipwrecked (c3fa72)

  20. Cogent commentery on the Ricci case by Steve Sailer. Here, he discusses the meaning of the application of the EEOC standards in a world of actual fires, actual firefighters, and actual victims. Here, he shows what happened when the city of New Haven’s hiring dream was implemented in a certain large Upper Midwest city, known for dynastic mayors, hardball polics, cronyism, and race-counsciousness. Also Hope and Change.

    AMac (b349fc)

  21. 5-4. Kennedy rendered the opinion. Granted summary judgment in favor of the plaintiffs. Not necessary to reach the constitutional questions because the statute was dispositive in this case.

    Total ideological divide.

    nk (bef3ab)


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