The Demo Site

By Rich W.

Much has been made of Sotomayor’s statement that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” I don’t put much stock in short quotes out of context from years ago, and so I read the whole speech she made in 2001. In reading it I think she would also agree that a “wise ditchdigger . . .” In other words, our experiences influence our judgments in many ways. A breadth of experiences, hopefully, leads to wiser decisions. In further context, the speech was made at the annual “Honorable Mario G. Olmos Law and Cultural Diversity Memorial Lecture” at Berkley University. Given that she was asked to speak on diversity in the courts, her statement is not surprising. It would have been, if she had chosen to suggest that diverse experiences led to “less wise” decisions.

More recently, the Supreme court overturned her decision concerning the New Haven firefighters. But, was it her decision, and what was that all about? Let’s look at the background, and her part in the case.

Two tests were given to 118 firefighters in New Haven, Connecticut, to determine who would best fill promotions to Captain (7 positions) and Leutenant (8 positions.) For the captain’s test, 58% of the whites, 32% of the blacks, and 20% passed the test. For open positions, 10 whites were eligible due to their high scores, and no Blacks or Hispanics.

For the Lieutenant’s test, 64% white, 32% Black, and 20% Hispanic passed the test. 7 whites & two Hispanics were eligible for promotion.

Current federal law requires that such tests for promotion cannot have a “disparate impact on the basis of race, color, religion, sex, or national origin” and that the test measures knowledge and abilities that are “job related for the position in question and consistent with business necessity.” Certainly, the results had “disparate impact”. They would have had to prove that the test was “job related” and “necessary”. The City of New Haven decided that the test did not comply with federal law, and refused to certify the results, while they searched for a solution.

Of course the city was sued by the winning firefighters. The federal district court upheld the city’s decision. The case was appealed to the Federal Second Circuit Court, and a three judge panel (including Sotomayor) unanimously agreed with the district court and city. It was appealed again, to the Supreme Court, and the lower courts’ ruling was overturned by a 5-4 decision.

So, what do I think about all this?

Firstly, Sotomayor’s opinion wouldn’t have changed the outcome even one iota. The most she could have done was to make the Circuit court’s decision divided rather than unanimous.

Secondly, there is serious debate about how the law should be interpreted in this case, and Sotomayor, the other two Judges on the circuit court, the District court Judge, and 4 Supreme Court judges weren’t wrong, just overruled.

Thirdly, her opinion wasn’t “activist”. If anything, the 5 judges that overruled their 4 peers and the 4 lower court judges were the “activists.” Perhaps the law, or portions of it, should be overturned. However, even this Supreme Court ruling doesn’t do so.

Lastly, I’d have to read up on some of the other cases she has ruled on to have an opinion of her, but don’t much care for “the spin.” I think she should be confirmed, and am reasonably sure she will be.

Rich W.