Thursday, July 16, 2009
Baton Rouge, Louisiana
SOTOMAYOR DOES NOT
PASS THE FAIRNESS TEST
By Jim Brown
“Elections have consequences.” These were the words of South Carolina Senator Lindsey Graham, as he questioned Judge Sonia Sotomayor on the first day of her Supreme Court confirmation hearings. “Republicans lost the November election and President Obama won. And that ought to matter.” Graham has hoisted the white flag of Republican surrender. No real fight to oppose the Sotomayor nomination. But are Republican Senators asking the right questions?
The new nominee profiles in lock step with the current court member she hopes to replace, Justice David Souter. But there are both questions and disturbing decisions that any senator, Democrat and Republican alike should both investigate and question. We are talking about a lifetime appointment, and this will be the one and only chance to delve into the mind of a Judge who can and will shape public policy that affects every citizen for many years to come.
There has been much written about the New Haven decision where a three judge court, that included Sotomayor, rejected the appeal of white firefighters who contended they were victims of racial discrimination when they were denied promotions. And you would have to be completely callas not to feel sympathy for firefighter Frank Ricci. He studied for over a year to pass the city’s promotion exam, hiring as tutor and using flash cards for practice to overcome his dyslexia. He was one of several firefighters who scored high, but was denied the promotion because too many of the highest-scoring test takers turned out to be white like Ricci. Just last week, the US Supreme Court overturned the Sotomayor decision, saying the city violated federal civil rights law.
Sotomayor’s actions are disturbing on two levels. It was not just that the decision was wrong. There was no reasoning. No explanation. No guidance for other jurisdictions nationwide that were initially bound by what Sotomayor wrote. This was a decision that had huge civil rights and policy implications, yet Sotomayor chose to write only two paragraphs. Issues as urgent and volatile as minority hiring cry out for much more than a perfunctory thumbs-up-or-down response. The lower court’s decision ran 78 pages. Yet all that Sotomayor and her one supporting colleague could offer was two paragraphs.
In another quite short opinion involving a major national issue (Didden v Village of Port Chester), Sotomayor sided with a town that condemned private property for “public use” in what legal scholar Richard Epstein called “about as naked an abuse of government power as could be imagined.” And just like in the Ricci case, Sotomayor’s opinion was both short and barely analyzed the important constitutional claims concerning the taking of private property.
Is this a reflection of work ethic? Once confirmed, Sotomayor joins a court that is notorious for a light work load. As each year goes by, the Supreme Court works less and less. Some 10,000 petitions are filed in the Supreme Court each year, and almost all of them are turned aside. This year, the court might consider some 60 cases. They never worked too hard in the past, but at least up until some 15 years ago, the normal load was 125 cases or more. But no longer. The Supremes workload lightens year after year.
With her flimsy opinion in the highly volatile and important New Haven and Didden cases, Sotomayor should be quizzed at length about her own work ethic and commitment to getting her workload done. Does she agree with taking a three month summer vacation, and continuing to accept a lighter caseload as each year goes by? Does a lifetime appointment allow judges and justices to work at whatever pace they please?
And what about all this “empathy” talk? How much of a bleeding heart is the judge? Not much if you look at her questionable and cold hearted decision in the Deskovic case. As a 17 year old student, Deskovic was convicted of the rape and murder of a classmate despite a negative DNA test. He served 16 years in prison before he was ultimately exonerated with additional DNA evidence pointed to another man.
When his lawyer appealed Deskovic’s conviction, the local clerk of court misinformed him of the deadline for filing the appeal. The case went to Sotomayor’s appeals court, where she ruled, along with the other judge on the panel, that the lawyer’s mistake did not “rise to the level of extraordinary circumstances,” so as to forgive the delay. There was no need to look at the evidence that would have cleared Deskovic. He was an innocent man, but Sotomayor opted for procedure over fairness and finality of conviction over accuracy. He was innocent, but that apparently did not matter to the judge.
I hope this is not what she means when she says that “a wise Latina” would make better judicial decisions. In these and other decisions, Sotomayor has opted for procedure over fairness and finality of conviction over accuracy. She has shown to be shallow in her rhetoric, mediocre in her scholarship, and insensitive to basic notions of what is the right thing to do in determining a just result.
Sen. Graham is probably right when he told Sotomayor: “Unless you have a complete meltdown,” he said, “you’re going to get confirmed.” In a country with so much bright legal talent, the President and the US Senate could and should have done much better.
“Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.”
Justice Hugo L. Black, in Turner v United States, 396 US 398, 426
Peace and Justice
Jim Brown’s weekly column appears in numerous newspapers and websites throughout the south. To read past columns going back to 2002, go to www.jimbrownla.com.