Tuesday, May 26, 2009

Moss On Criticism Of Sotomayor

Moss Scott Moss (Colorado) has an op-ed piece in Politico called, "The Case Against The Case Against The Sonia Sotomayor Nomination." Among the topics Moss addresses is Sotomayor's joining in the Ricci case and some of her other employment decisions:

Critics say Sotomayor ruled to allow blatant reverse discrimination, but the reality was more complex for the poor City of New Haven, Conn., which faced competing demands under federal law: (a) avoid discriminating by race, including against whites and also (b) consciously undertake efforts to eliminate even well-intended job tests that have a “disparate impact” on racial minorities, unless the test is a provable “business necessity.” Each is a clear textual command of federal law, and each crashes headlong into each other, making it certain that some judges would rule one way while others rule the opposite. . . .

A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).

In the 2001 opinion, Sotomayor led a unanimous appellate panel in reversing the pretrial dismissal of a female police officer’s claims of discrimination, retaliation, and a hostile work environment. Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country — a more scholarly effort than typically is necessary for a decision on an individual New York

police officer’s individual claim. Agree or disagree with her on contentious issues like discrimination law, Sotomayor is a thoughtful, scholarly judge whose work holds up with the best of them.

Check out the entire piece.



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Isn't the problem for Sotomeyer with the Ricci case summed up by Judge Jose Cabranes' dissent that "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

While in Raniola "Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country," but when given the hard facts in Ricci she punted instead.

Posted by: Mark Reitz | May 27, 2009 2:18:21 PM

I downloaded the oral argument from the Supreme Court website and it is well worth reading. It can be found at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1428.pdf.

It is a fair criticism that Judge Sotomayor and her fellow jurists should have done more than dispatch this case with a single paragraph. Given it involved a governmental entity, a discussion of constitutional issues clearly had a rightful place in the discussion. This is true especially given the admission by the City that its contract with the outside firm which designed and administered the test had a provision requiring the firm to provide validation on the request of the city.

Posted by: John Keifer | May 28, 2009 7:10:41 AM

For some reason, I remember the campaign against Judge Pickering.

Democrats set the standard. Advocates for Sotomayor should hardly be surprised to hear criticisms that they believe to be unfair.

Posted by: James Young | May 28, 2009 6:03:07 PM

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