Minor Thoughts from me to you

President Barack Obama nominated appeals court judge Sonia Sotomayor to the Supreme Court today. I don't like her, as a judge.

Here's what I mean. The Law is the bedrock foundation of society. It is the set of rules by which society operates. For a society to be just, it must have one set of rules that applies to all people. Judges apply the rules to individual events as cases are brought before them.

For a society to be just, the judges must apply the Law the same way every time. It doesn't matter if the plaintiff is rich or poor, young or old, of minority or majority race, male or female, popular or unpopular, respectful or vulgar, thin or obese, short or tell, blonde or brunette -- it doesn't matter. The justice must apply the Law the same way to everybody. Any other standard is an injustice.

Now, it's true. Certain legislation may lead to unjust outcomes. But that is a political issue, not a legal issue. People must work through their government representatives to change the Law. Judges can only apply the Law as it is written. If each judge hands down the opinion that he or she feels is most "right", a person's rights and privileges depend not on impartial Laws but on the whims of powerful, unaccountable individuals.

I don't think that Justice Sotomayor meets that standard. She has fallen short in both her words and her previous judicial rulings.

In 2001, she gave a speech entitled A Latina Judge's Voice. She said:

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I 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.

Here she is explicitly saying that "wise" judicial rulings don't come from an impartial application of the rules. Instead, she believes that "wise" judicial rulings depend on one's gender and cultural background. Apparently, she believes that the Law changes with each person ruling on a case, that there is no fixed standard. That scares me.

While speaking at Duke University in 2005, Judge Sotomayor said that the Federal Appeals courts are "where policy is made". She didn't see her job as an impartial application of rules. She saw it as a place to decide what the rules are. If you're going before Judge Sotomayor, you can't know in advance what to expect. You can expect her to decide what the Law is based on who you are and how sympathetic she is to your case. That's a recipe for tyranny, not liberty.

So how has she decided cases? Well, let's take a very recent example: Ricci v. DeStefano.

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. ("IOS") to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the "rule of three," once test results are "certified," the Department must promote from the group of applicants achieving the top three scores. Immediate application of the "rule of three" to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants' pass rate on the lieutenant exam was approximately half of the rate for white applicants - a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams' results.

Because of these outcomes, the City's independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed "adverse impact" and that he could design tests with less disparate results and better measuring the jobs' requirements. He also conceded that the City's tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

A City official testified that if the board chose to certify the results, then the city could be subject to a disparate impact suit from the minority applicants who did not qualify for promotions. Yet, his testimony may have been contradicted by IOS's "technical validity report." There is some evidence to suggest IOS was prepared to issue such a report, which might have "establish[ed] the City's lawful use of the test results." However, the City argues that IOS never offered to prepare the report nor would the report have "proved" the legality of the test.

Because the exam review board split evenly, 2-2, on whether to certify the exam results (with one member recusing herself based upon a conflict of interest), they were not certified.

A group of white firefighters, one of whom is also Hispanic, who scored some of the highest results on the administered exams, filed suit against the City and its officials, alleging that the City's action violated Title VII and the Equal Protection Clause. On cross-motions for summary judgment, the district court granted the City's motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII's disparate impact prohibition.

Basically, the District Court threw out the case saying that even though the firefighters had met the stated criteria for promotion, the city did not have to promote them if the promotion would unduly benefit one racial group over another. The firefighters appealed their case to the Second Circuit Court of Appeals.

Judge Sotomayor was one of three judges who upheld the decision of the District Court. Judge Sotomayor failed to engage the Constitutional issues at stake and failed to defend the firefighters who had played according to the rules. By signing on to the flimsy opinion of the majority, she upheld a racial ruling instead of making a colorblind ruling according to the Law.

Justice should be blind. Judge Sotomayor has shown a willingness to take off the blindfold and decide which side of the scales she likes better. For that reason, I consider her unfit to serve as a United States Supreme Court Justice.