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Hullabaloo


Monday, June 29, 2009

 
The Misinformation Spread on Ricci

by dday

The Supreme Court handed down their decision in the Ricci case, reversing with a 5-4 count the lower court opinion that the city of New Haven can refuse to apply a promotions test for firefighters because no African-Americans passed it. The city feared a discrimination lawsuit over the test, but the Court basically waved that away.

The case was previously decided by the 2nd Circuit Court of Appeals by a three-judge panel that included Sonia Sotomayor. And so now we'll hear all about that honky-hating judge reversed again (how does this affect her "reversal rate"?) and the manly men of the Supreme Court helping out those poor white firefighters who worked so hard to pass that test. As Eric Boehlert chronicles:

Not only was the reversal a foregone conclusion, but so too, was the narrative now being played out in the press. The press and Republicans (notice how they work in tandem) have been touting this reversal for weeks, hyping it as a potentially "embarrassing" reversal, which would (supposedly) raise all kind of doubts about Sotomayor's smarts and her ability as a judge.

And trust us, this meme is already being hammered and will likely continue throughout the week: Sotomayor was reversed--she got smacked down--by the Supreme Court! It's a huge deal.

Except, of course, it is not. Judges get reversed everyday. In fact, the system of American jurisprudence is built upon the idea of judges getting reversed. It happens all the time. And yes, the Supreme Court reverses judges all the time. But only now, in the case of Sotomayor, is the press pretending that that reversal is a singular rebuke; that it's a mark of shame for Sotomayor because she got the case wrong.


In addition, Courts of Appeals, in a general sense, follow prior precedent rather than make the sweeping changes that can be made at the SCOTUS level. Far from being a slave to "empathy," Sotomayor followed the law available to her in concurring with the majority decision on her Appeals Court. In fact, as Sam Alito wrote in his concurrence today, "But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law . . . And that is what, until today's decision, has been denied them." The Second Court had no precedent on which to rely to offer that enforcement, and if Sotomayor reversed the District Court ruling in Ricci, she would have been relying on sympathy. Which is what her critics say she always relies on.

Nevertheless, the leader of the Republican Party says that " "The court found that she was indeed a racist", by a 9-0 margin, somehow (that's the new meme). Judge Sotomayor's position on this mirrored the Justice she is prepared to replace on the Court, but never mind.

Those on the right wing will certainly spin this as proof positive of Sotomayor's incompetence, or her hatred of white people, etc. They've been preparing the ground for this ruling as a "seminal moment" that could derail the nomination, and they will come up with whatever distortions necessary to try to ensure that. But the charge rings pretty hollow and is based on a misunderstanding of the law, which is characteristic of many conservative arguments, actually.


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