That Firefighters' Case

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Published: June 30, 2009
On Monday, the Supreme Court dealt a blow to diversity in the American workplace.
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The court ruled, 5-to-4, that New Haven acted illegally when it threw out a promotion test on which minority firefighters had done poorly. In doing so, it put a new, narrower definition on Title VII of the Civil Rights Act of 1964, which is intended to root out discriminatory policies.
The case is already being used as ammunition against Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, who sided with New Haven at the appeals court level. If the Monday ruling says anything about Judge Sotomayor, however, it underscores the reasonableness of her views.
Many black and Hispanic firefighters took New Haven’s promotion exam, but few passed. This sort of racial disparity often makes an exam illegal. Concerned that it would be sued by minority firefighters, New Haven threw out the test. A group of white firefighters sued, alleging that their civil rights had been violated.
A three-judge panel of the New York-based Court of Appeals for the Second Circuit, which included Judge Sotomayor, ruled in favor of New Haven. The full Second Circuit declined to reconsider that decision.
The Supreme Court reversed the panel’s ruling. Justice Anthony Kennedy, writing for the majority, said throwing out the promotion exam was a race-based decision that hurt the white firefighters. It was permissible under Title VII, he wrote, only if the city could demonstrate a “strong basis in evidence” that if it had kept the test it would have been liable in a lawsuit by minority firefighters. New Haven failed to show that, he said.
Justice Ruth Bader Ginsburg, writing for the dissenters, provided the larger context. There is a long history of discrimination in the firefighting ranks. Although New Haven is nearly 60 percent black and Hispanic, few minorities are in command positions. She noted that New Haven’s test was flawed, and that other cities used better tests, with less racially skewed results.
Justice Ginsburg argued convincingly that when New Haven threw out the test it did not discriminate. The motivation of the civil service board that made the decision was to avoid discriminating against minority applicants and being sued by them under Title VII.
Cases like this, even the dissenters concede, pose difficult questions of fairness. New Haven’s decision to reject a test on which one group did poorly hurt other firefighters, who studied hard and were not to blame for the test’s flaws. But in the end, as Justice Ginsburg noted, New Haven was within its rights not to use a flawed, possibly illegal, test to make its promotions.
Judge Sotomayor’s critics wasted no time in calling the ruling a rebuke to her and arguing that it provided reason to oppose her confirmation to the Supreme Court. It does nothing of the sort.
Even the majority noted that its opinion “clarifies how Title VII applies” — hardly an indication that the Second Circuit ignored well-established law. Four of the nine justices — including David Souter, whose seat Judge Sotomayor would take — agreed with the result she reached. The ruling suggests that if Judge Sotomayor joined the court, in cases like this she would be likely to vote with the more liberal bloc — no great surprise.
On another point, the ruling underscored the emptiness of the “judicial activist” label that Republicans like to use in debates over nominees to the federal courts, including Judge Sotomayor. In the firefighters’ case, she actually refused to second-guess the city’s decision — an act of judicial restraint. It was the court’s conservatives, including Chief Justice John Roberts, who voted to overturn the decision of an elected government.
Next Article in Opinion (4 of 26) » A version of this article appeared in print on July 1, 2009, on page A32 of the New York edition.
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Past Coverage
Justices Rule That States Can Press Bank Cases (June 30, 2009)
Supreme Court Finds Bias Against White Firefighters (June 30, 2009)
Supreme Court Ruling Offers Little Guidance on Hiring (June 30, 2009)
Ruling Prompts a Mixed Response (June 23, 2009)
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Brooks is So Good it Hurts

He can be nuanced to a fault.
Herein he discusses Justice Sotomayor in a multi-faceted way:
http://www.nytimes.com/2009/06/09/opinion/09brooks.html?_r=1

What I find disconcerting is that he now accepts as OK that the vast majority of discrimination cases should be dismissed. (And that is Sotomayor's record as well.) This concept has never been verbalized outside the inner sanctums of the plaintiffs' bar.

Simply a Good Article

Comparing Justice Thomas and Judge Sotomayor. Not what you think it will be.

http://www.nytimes.com/2009/06/07/us/politics/07affirm.html?hp

The Judicial Nomination of Judge Sotomayor for the US Supreme Court

You should read this NYT article on Obama's choice of Judge Sotomayor this morning, and my comment posted therein, which I repeat here:

Sotomayor’s Rulings Are Exhaustive but Often Narrow
8:11 am

Wednesday, May 27, 2009

News Analysis: Sotomayor’s Rulings Are Exhaustive but Often NarrowBack to Article »
By ADAM LIPTAK
Judge Sonia Sotomayor’s opinions are marked by diligence, depth and unflashy competence, but reveal no larger vision.
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May 27th, 2009 8:10 am
This article, and the discussion of the case that was handled in a cursory fashion, leads to a hitherto unreported shame of the federal courts -- the skirting of the rules to dismiss discrimination cases at the "summary judgment" stage, so that there is no opportunity to have the jury hear and decide the case.

As a trial and appellate lawyer representing individuals who have been discriminated against, and practicing in Cincinnati, where the Sixth Circuit Court of Appeals "resides," (more on "resides" later) I have personally witnessed (and suffered from) this tragedy in case after case, by both Republican and Democratic (and so-called liberal) appointments, and I have attended a Federal Bar Association conference at the Hilton at Weston in Columbus (2005 or so) where the first speaker, speaking mainly to federal judges and corporate defense lawyers, called discrimination cases "the slip and fall cases of the federal bar," thus "educating" the newer attendees that it was all right to throw the cases out, or into the dustbin.

From the federal judge's point of view (I imagine) these cases take a lot of time as each one is fact-intensive and the issue is not simple (to decide)--whether there was "intent" by the employer (to discriminate). Also, once the judge has heard the case at the preliminary stage of summary judgment he becomes bored with the prospect of having to sit through a week trial while the jury hears the same facts, so he dismisses it.

This problem does not exist so much in the state courts on these types of cases, nor in "good cause" cases where there is a public employee or union and a statutory duty of the employer not to dismiss an employee except for good cause. In state courts, however, there are other problems dealing with quality and knowledge-base of the judge.

I am also struck by the articles and interviews (e.g. Charlie Rose last night) over yesterday's appointment, that are ignorant that on the federal circuit courts cases are heard only by a panel of three (out of perhaps 18 judges) and therefore one judge may not sit in on many cases or "know" another given judge. Plus the judges live scattered and separated lives throughout the circuit (usually 3-7 states) territory and only fly in for the week they are hearing cases.

Your article should be read along with the New Yorker's recent piece by Jeffrey Toobin on Justice Roberts. I was especially interested in the obvious fact that Justice Roberts, along with many of the judges in the federal system, have spent their professional lives (pre-appointment) among other millionaire lawyers, in the big cororate law firms (I started out in one myself and know the environment), and cannot even comprehend the environment of the practicing plaintiff's lawyer representing discrimination victims.

Grisham's recent book, "The Associate," has already started to turn heads and the concept of "the chargeable hour." I have taken the time to "Nuance" and therefore quote verbatim a couple of passages from that book on my blog http://www.natgagu.blogspot.com/ (search for "Grisham" therein).

In one he makes the simple but amazingly correct point that once the top-of-class star is wined and dined the one summer, going to Yankee games, doing simple but interesting tasks, socializing with designated partners, then is hired the following spring (big NY law firm practice), "his life is essentially over." Plain and simple.
— bruce abel, cincinnati
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