On The Charge of "Reverse Racism."

I posted this elsewhere, but want to consolidate it here. My previous post was in response to an anti-Sotomayor claim that her decisions were "so poor" that they were reversed by the US Supreme Court "sixty percent of the time."

[Never mind that the USSC doesn't bother to hear appeals on decisions that the majority thinks were right the first time. They aren't required to hear all appeals, and so they only select ones that the initial review leads them to believe need to be reconsidered. Statistics like this one are hugely misleading--how many of "her" decisions were appealed? How many did the Supreme Court even see?]

Because any decision which is reversed by the US Supreme Court is self-evidently a "bad decision?" So when the US Supreme Court reverses one of it's previous decisions, what does that mean?

Judge Sotomayor is an Appeals Court judge, which means that she sits on a panel with at least two other judges at all times. "Her" decisions are either majority decisions, which means that at least one other judge agreed with her, or they are dissenting opinions, in which she articulates where she differs from the decision. Dissenting opinions have to be read very carefully, because they are not self-contained. They often start with accepting some parts of the majority opinion, but then explain how the judge feels a different decision should have been made.

Sometimes dissenting opinions even agree with the outcome, but argue for a different route to the result--which is important because ALL parts of the majority opinion become precedent and become rules to be followed in the next case. Some dissenting opinions simply caution against the language of the majority opinion as being too broad, while not taking any issue with the result.

Ricci v. DeStefano is NOT proof of "reverse discrimination" by Sonia Sotomayor. It is a way for people to insist on White Male Privilege without actually saying so. The city of New Haven gave an examination to its firefighters for promotion. Half of the test was written, half was oral. When the results came back, NO black firefighters passed, 19 whites and 1 Hispanic did. The city threw out the results of the test, as required by federal law, because it was de facto a racially discriminatory test as proved by the results. All 20 of the firefighters who passed sued.

The district court judge who heard the case issued a 48 page ruling explaining her reasoning. In it, she concluded that there was no discrimination against the 20, because the city had not promoted anyone before throwing out the test. Sotomayor was on a THREE judge panel that simply affirmed the lower court decision without comment. Jose Cabranes wrote a dissent. The Court of Appeals accepted a petition by the parties to re=hear the case. The Court voted 7-6 not to rehear and reconsider the case.

So, Sonia Sotomayor is NOT the judge who reached the initial decision.

Sonia Sotomayor is NOT the only judge who voted to affirm the lower court.

Sonia Sotomayor MIGHT EVEN have voted to rehear the case.

I ask you this:

What gives any of these 20 firefighters an expectation that HE would have been promoted anyway? What if the city had promoted only the Hispanic?

What actually happened in New Haven? This test was given back in 2003--in the six years since, I would bet that the city revised its test and there have been promotions since then.

There is no "reverse discrimination" here--the city decided to throw out the results of a test that the city thought was self-evidently discriminatory. The district court and the Court of Appeals (NOT just Judge Sotomayor) agreed that the city was allowed to make that decision.

Now if the city had kept the results and promoted only white guys, and the black firefighters had sued, and everybody agreed that the test itself was racially neutral, and the court had ordered the promted white guys to be demoted--then you might have a case for "reverse discrimination." Maybe.

I just think we have to be VERY CAREFUL when discussing "reverse discrimination." The whole POINT of having a judiciary is so the majority doesn't run roughshod over over the minority. White males set up a system that codified black slavery and women unable to hold property or vote. Slicing into traditional white male privilege is NOT NECESSARILY a bad thing.

The Republican Party (and not incidentally, Rush Limbaugh and Fox News, as well as others) have set themselves the task of being the Opposing Party. And as they see it, their job is to oppose anything beign done by the President and the Democratic Party. Which is fine, as long as we understand that is what is going on.

This is not nuanced. If you are going to be The Opposing Party, you do NOT compromise, you do NOT admit that--on balance--something is a good idea, or a good choice. Your job is to dig up and promote whatever grounds you can find to oppose.

This kefuffle over the Ricci "decision" is not a balanced consideration of whether or not the process is sound, or that Sotomayor's role was appropriate. It is OPPOSITION, pure and simple. It is up to US, as the public, to take these opposing viewpoints and synthesize a conclusion from them.

It is an IMPORTANT job. Don't abdicate your responsibility.