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**Ebjjrxrd** · 07-03-2009, 05:53 PM

More on the Ricci case, the law and Sotomayor :

Much Ado about Ricci

The Daily Voice
Christopher J. Metzler

Despite a long and varied legal career, stellar educational credentials and service as an appellate court judge, Sonia Sotomayor's qualifications to serve on the Supreme Court of the United States are being reduced to a single case, Ricci v. DeStefano. If you believe her opponents, Judge Sotomayor, as a member of the majority in this case ignored the law and simply decided the case based on the fact that she hates White men.

The fact is that Judge Sotomayor was part of a three judge panel that ruled on the case. The entire panel (en banc) of the 2nd Circuit had an opportunity to rehear they case and they declined to do so. Does this mean that the entire panel is racist? The truth is that the panel's ruling simply followed existing precedent. In theory, this should delight, not dismay the band of constitutional purists that play the talk circuit. Oh the hypocrisy! They should also admit that by selecting this case as their main line of attack, they are stoking naked racial animus.

First, so many of the judge's critics claim that she is a judicial activist and thus she disregards existing law. The problem with this argument specifically in the Ricci case is that anti-discrimination law allows for an employer to be held liable for both intentional (disparate treatment) and unintentional (disparate impact) discrimination. Thus, an employer such as the city of New Haven cannot ignore racial outcomes on a promotional exam. This is the current state of the law; so why haven't the "legal purists" among the judge's critics called on Congress to change the law? Or is their argument that a judge may legislate from the bench only where the judge agrees with "solid conservative principles"?

Second, the case raises the issue of equal protection. The equal protection clause of the Fourteenth Amendment provides that "No State shall deny to any person the equal protection of the laws." Although precisely what this means has never been definitively answered by the Courts, we have heard quite a bit about the intent of the framers in this debate. As to the 14th Amendment, the historical intent is clear. The amendment was passed post-Civil War in an attempt to protect Blacks from state sanctioned oppression and discrimination. Of course, the text of the equal protection clause does not limit protection to only Blacks, and I am not suggesting that the text of the equal protection clause reads that equal protection is exclusively for Blacks. I am suggesting that in this debate, we analyze all sides of the issue not just those that support our world views.

The reality is that efforts to protect Blacks from discrimination in the United States have a particular and specific historical context whether critics choose to acknowledge that context or not. Despite this frame, in the employment context, the courts have expanded that protection to other targets of discrimination.

Which leads to the question of how constitutional purists in strict constructionists' clothing could expand a clause that was originally and historically intended to protect only Blacks to other groups without being activists? Could it be that the Supremes do in fact make policy? Could it be that Judge Sotomayor and her colleagues are the purists here? Could it be that "intent" is determined not by some detached, disembodied, judicial intellectual avatar but by warm blooded human beings?

The theory of discrimination at work in the Ricci case was that even though the promotional test was "neutral" in that all had to take it to be eligible for promotion, the results had a different (and worse) impact on Black firefighters. Under a theory of disparate impact, the City of New Haven had to consider race to the extent that its selection tool (the test) affected Blacks differently and worse than Whites. To be sure, the City would have been sued regardless of the decision that it made. Given the current state of the law, the court's decision was reasonable and not racial profiling as some would have us see it. I do agree that the court should have written a more extensive opinion about its reasoning. However, there is nothing that requires the Court to do so. Thus any argument that Judge Sotomayor and her colleagues made a decision solely on the basis on race is cretinous.

Third, this is not the only opinion Judge Sotomayor has written. So why have her opponents chosen to amplify this one? The answer is simple. For all of the talk about moving beyond race and judging people based on merit, avoiding identity politics and the like, America still has unresolved issues with race. Thus, the brawn of race as a political, cultural and wedge issue cannot be ignored. The Ricci case strikes a nerve with many who want the courts to rule that White men are the victims of discrimination in the same way that Blacks have historically been in America thus giving them legal and political cover to play the race card. So, why haven't her critics simply said so? Because they live in racial glass houses from which they throw stones.

Moreover, on the issue of race, "original intent" is powerful code that has been effectively employed to change the conversation. The fact is that anti-discrimination laws were originally enacted to protect Blacks from discrimination by Whites. The 14th Amendment's Equal Protection's clause was enacted to protect Blacks from state sanctioned discrimination at the hands of Whites. This is the original intent. However on the issue of race, Roberts, Scalia, Thomas and Alito have made law rather than interpreted it by ruling, for example, that affirmative action is unconstitutional even though the framers never envisioned affirmative action. So, who are the judicial activists here?

Finally, opponents of Judge Sotomayor by selecting the Ricci case as their main line of attack against her have proven what I have written all along. The term "post-racial America" is an oxymoron.

Dr. Christopher J. Metzler is associate dean at Georgetown University and the author of The Construction and Rearticulation of Race in a Post-Racial America.

Copyright © 2008, TheDailyVoice.com, Inc.

07-03-2009, 05:53 PM	#11
Ebjjrxrd Join Date Oct 2005 Posts 511 Senior Member	More on the Ricci case, the law and Sotomayor : Much Ado about Ricci The Daily Voice Christopher J. Metzler Despite a long and varied legal career, stellar educational credentials and service as an appellate court judge, Sonia Sotomayor's qualifications to serve on the Supreme Court of the United States are being reduced to a single case, Ricci v. DeStefano. If you believe her opponents, Judge Sotomayor, as a member of the majority in this case ignored the law and simply decided the case based on the fact that she hates White men. The fact is that Judge Sotomayor was part of a three judge panel that ruled on the case. The entire panel (en banc) of the 2nd Circuit had an opportunity to rehear they case and they declined to do so. Does this mean that the entire panel is racist? The truth is that the panel's ruling simply followed existing precedent. In theory, this should delight, not dismay the band of constitutional purists that play the talk circuit. Oh the hypocrisy! They should also admit that by selecting this case as their main line of attack, they are stoking naked racial animus. First, so many of the judge's critics claim that she is a judicial activist and thus she disregards existing law. The problem with this argument specifically in the Ricci case is that anti-discrimination law allows for an employer to be held liable for both intentional (disparate treatment) and unintentional (disparate impact) discrimination. Thus, an employer such as the city of New Haven cannot ignore racial outcomes on a promotional exam. This is the current state of the law; so why haven't the "legal purists" among the judge's critics called on Congress to change the law? Or is their argument that a judge may legislate from the bench only where the judge agrees with "solid conservative principles"? Second, the case raises the issue of equal protection. The equal protection clause of the Fourteenth Amendment provides that "No State shall deny to any person the equal protection of the laws." Although precisely what this means has never been definitively answered by the Courts, we have heard quite a bit about the intent of the framers in this debate. As to the 14th Amendment, the historical intent is clear. The amendment was passed post-Civil War in an attempt to protect Blacks from state sanctioned oppression and discrimination. Of course, the text of the equal protection clause does not limit protection to only Blacks, and I am not suggesting that the text of the equal protection clause reads that equal protection is exclusively for Blacks. I am suggesting that in this debate, we analyze all sides of the issue not just those that support our world views. The reality is that efforts to protect Blacks from discrimination in the United States have a particular and specific historical context whether critics choose to acknowledge that context or not. Despite this frame, in the employment context, the courts have expanded that protection to other targets of discrimination. Which leads to the question of how constitutional purists in strict constructionists' clothing could expand a clause that was originally and historically intended to protect only Blacks to other groups without being activists? Could it be that the Supremes do in fact make policy? Could it be that Judge Sotomayor and her colleagues are the purists here? Could it be that "intent" is determined not by some detached, disembodied, judicial intellectual avatar but by warm blooded human beings? The theory of discrimination at work in the Ricci case was that even though the promotional test was "neutral" in that all had to take it to be eligible for promotion, the results had a different (and worse) impact on Black firefighters. Under a theory of disparate impact, the City of New Haven had to consider race to the extent that its selection tool (the test) affected Blacks differently and worse than Whites. To be sure, the City would have been sued regardless of the decision that it made. Given the current state of the law, the court's decision was reasonable and not racial profiling as some would have us see it. I do agree that the court should have written a more extensive opinion about its reasoning. However, there is nothing that requires the Court to do so. Thus any argument that Judge Sotomayor and her colleagues made a decision solely on the basis on race is cretinous. Third, this is not the only opinion Judge Sotomayor has written. So why have her opponents chosen to amplify this one? The answer is simple. For all of the talk about moving beyond race and judging people based on merit, avoiding identity politics and the like, America still has unresolved issues with race. Thus, the brawn of race as a political, cultural and wedge issue cannot be ignored. The Ricci case strikes a nerve with many who want the courts to rule that White men are the victims of discrimination in the same way that Blacks have historically been in America thus giving them legal and political cover to play the race card. So, why haven't her critics simply said so? Because they live in racial glass houses from which they throw stones. Moreover, on the issue of race, "original intent" is powerful code that has been effectively employed to change the conversation. The fact is that anti-discrimination laws were originally enacted to protect Blacks from discrimination by Whites. The 14th Amendment's Equal Protection's clause was enacted to protect Blacks from state sanctioned discrimination at the hands of Whites. This is the original intent. However on the issue of race, Roberts, Scalia, Thomas and Alito have made law rather than interpreted it by ruling, for example, that affirmative action is unconstitutional even though the framers never envisioned affirmative action. So, who are the judicial activists here? Finally, opponents of Judge Sotomayor by selecting the Ricci case as their main line of attack against her have proven what I have written all along. The term "post-racial America" is an oxymoron. Dr. Christopher J. Metzler is associate dean at Georgetown University and the author of The Construction and Rearticulation of Race in a Post-Racial America. Copyright © 2008, TheDailyVoice.com, Inc.
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