Souter to retire from Supreme Court

[Controlled Chaos]

If it had been that simple, this would have never gone to court. There are a series of federal laws that a city has to navigate to hire and promote people. Basically, in this case, the city decided that the only way to not discriminate in some way is to promote nobody.

I was just responding to the statement "Activist judges making new law over decades of precedent!"

 

[lostfan]

I was just responding to the statement "Activist judges making new law over decades of precedent!"

He was just being sarcastic to go along with what I was saying.

[Balta1701]

Since we've gone through that decision, I figured some of y'all would enjoy this spectacle.

Republicans will call two New Haven firefighters to testify in the confirmation hearings of Sonia Sotomayor next week, making clear the GOP's intent to place affirmative action at the center of the Senate battle over Sotomayor's nomination.

 

A Judiciary Committee press release lists Frank Ricci and Ben Vargas as expected Republican witnesses. Ricci was the lead plaintiff in Ricci v. DeStefano, the controversial case in which Sotomayor ruled the New Haven fire department acted constitutionally when it discounted the results of a qualifying test for promotions after too few black firefighters scored as high as their white counterparts. Vargas, who is Hispanic, was the only non-white co-plaintiff in the racially charged case.

 

The Supreme Court later overturned that decision.

 

Meanwhile, Democrats will trot out New York City Mayor Michael Bloomberg, who supports Sotomayor's nomination. Also testifying at the behest of Democrats will be former FBI Director Louis Freeh, former New York District Attorney Robert Morgenthau (Sotomayor's boss when she was a prosecutor) and former major league pitcher David Cone. (I'm assuming Cone's testimony has something to do with Sotomayor "saving baseball.")

[lostfan]

Sotomayor on the New Haven Case:

 

"The issue was not what we would do or not do, because we were following precedent," Sotomayor said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court.

 

ding ding ding, lostfan is right again (although I think Rex was the first one to make that point in this thread)

[Jenksismyhero]

I don't think there is anything wrong with responsible judicial activism. And this is responsible judicial activism, in my opinion. But this is absolutely a case of the Supreme Court creating policy instead of enforcing laws. And that's not necessarily always a bad thing either.

 

I missed the boat a little on this thread, but how was this decision judicial activism? They refused to create a higher standard on an already existing law. They told the city you created a neutral test, you got the results, you didn't like the results because it didn't have enough minorities, so based on that (race) you decided to throw out the results and not hire a certain race of people.

 

To me it would have been judicial activism to extend the law to allow such a practice in the name of equality (i.e., it's cool to discriminate against whites/hispanics so long as you have a reasonable belief that you're discriminating against blacks)

[lostfan]

I missed the boat a little on this thread, but how was this decision judicial activism? They refused to create a higher standard on an already existing law. They told the city you created a neutral test, you got the results, you didn't like the results because it didn't have enough minorities, so based on that (race) you decided to throw out the results and not hire a certain race of people.

 

To me it would have been judicial activism to extend the law to allow such a practice in the name of equality (i.e., it's cool to discriminate against whites/hispanics so long as you have a reasonable belief that you're discriminating against blacks)

The law being that the city had the right to throw out the results because they didn't like it, and the Supreme Court said no they didn't (overriding the precedent in the federal district). In all honesty it's incredibly easy to predict who is voting for what when certain issues come up, as of right now only Kennedy is the one that's hard to predict sometimes.

Edited July 14, 2009 by lostfan

[Jenksismyhero]

The law being that the city had the right to throw out the results because they didn't like it, and the Supreme Court said no they didn't (overriding the precedent in the federal district). In all honesty it's incredibly easy to predict who is voting for what when certain issues come up, as of right now only Kennedy is the one that's hard to predict sometimes.

 

Well I guess in that sense it is, but then every decision by the Supreme Court is judicial activism (overturning/affirming precedent). I would argue though that they WERE following the precedent of previous Supreme Court decisions regarding discrimination.

Edited July 14, 2009 by Jenksismybitch

[lostfan]

Well I guess in that sense it is, but then every decision by the Supreme Court is judicial activism (overturning/affirming precedent). I would argue though that they WERE following the precedent of previous Supreme Court decisions regarding discrimination.

That's part of what me and Rex were saying, that judicial activism is an overused and pointless label.

[clyons]

The law being that the city had the right to throw out the results because they didn't like it, and the Supreme Court said no they didn't (overriding the precedent in the federal district).

 

I don't believe the city ever claimed it had the right to throw out the results simply because they "didn't like" them, or that any precedent had ever held that it did. The city argued that it had the right to throw out the tests based on its legitmate, good-faith belief that its failure to do so would subject it to lawsuits from the minority firefighters upon whom the test had a significant statistical "disparate impact." This disparate impact theory (giving rise to liability for employment practices that are 'fair in form, but discriminatory in practice') is rooted in Supreme Court precedent going back 30+ years.

 

Ironically, the city's actions were guided almost totally by its understanding of what current law required. As has been pointed out, it spent big bucks to have consultants concoct a supposedly "race neutral" test. However, the results that came back showed significant statistical disparities along racial lines. Fearing litigation based on these results, it decided the safest and legally correct course of action was to not promote anyone. It should be noted that in this case there was no tangible evidence of racial bias, prejudice or animosity on the part of the city decision makers. That was never at issue.

 

In essence, the city contended and the lower courts held that it should not be held liable for intentional discrimination because its actions were guided soley by its intentions to comply with the law, not violate it. However, the Supreme Court rejected that, and essentially held that an employment decision made to avoid racial litigation is still essentially (and unawfully) a decision based upon race: “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

 

That is what broke new ground.

[lostfan]

^^I just typed it that way for brevity's sake.

[Rex Kickass]

That's part of what me and Rex were saying, that judicial activism is an overused and pointless label.

 

Exactly, every decision regarding the validity of laws is by definition activist.

[Balta1701]

When you want to use another judge to make an example of the person you're questioning in a Senate committee...you should first make sure the person you're citing is not in the room.

Sen. Jeff Sessions (R., Ala.), seeking to discredit Judge Sonia Sotomayor’s judicial philosophy, cited her 2001 “wise Latina” speech, and contrasted the view that ethnicity and sex influence judging with that of Judge Miriam Cedarbaum, who “believes that judges must transcend their personal sympathies and prejudices.”

 

“So I would just say to you, I believe in Judge Cedarbaum’s formulation,” Sessions told Sotomayor.

 

“My friend Judge Cedarbaum is here,” Sotomayor riposted, to Sessions’ apparent surprise. “We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts.”

 

Cedarbaum agreed.

 

“I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging,” she told Washington Wire. “We’d both like to see more women on the courts,” she added.