Thursday, May 28, 2009

Ricci case proves Republicans support judicial activism

Hilzoy at The Washington Monthly has an excellent post regarding the 2nd Circuit's ruling in the Ricci case, which Republican leaders such as Newt Gingrich, Tom Tancredo, Senator Jon Kyl, Mike Huckabee, Rush Limbaugh and Pat Buchanan have cited as indicative of Judge Sonia Sotomayor's alleged bias against white males.  (Huckabee's advocacy of race-neutrality was somewhat undercut by his inadvertently referring to Judge Sotomayor as "Maria".)  Hilzoy points out that the 2nd Circuit en banc affirmation of the District Court's decision in favor of the City of New Haven did nothing more than follow the pertinent statute and case law.  The Republican leadership appears to be demanding that judges legislate from the bench to overturn this well-established law.

The case was brought by Frank Ricci, an applicant for a firefighter position with the New Haven, Ct. Fire Department.  Mr. Ricci, a dyslexic, put considerable effort into preparing for the written firefighter exam, and scored well enough to qualify to be hired.  When it was found that the test results yielded almost only white male candidates for the open firefighter positions (one Hispanic also passed the exam), the City of New Haven decided not to rely on the test results to determine who to hire.  New Haven has a large minority population, but its Fire Department has a history of being largely staffed by white males.  The city was attempting to redress this problem by hiring some nonwhite firefighters.

Hilzoy points out that, under Title VII of the Civil Rights Act, one of the criteria for overturning an apparently discriminatory action is that the action must have no legitimate basis.  The District Court found, and the Court of Appeals including Judge Sotomayor affirmed, that New Haven had a legitimate basis for not using the test results in determining who to hire.  For that reason, they said that the question of whether or not the action was discriminatory was not a sufficient basis on which to rule New Haven's actions to be in violation of the pertinent law.

Precedent case law provides consistent clear support for this plain language interpretation of the Civil Rights Act.   According to Hilzoy, the guidance memoranda issued by the EEOC support this interpretation as well.  

Remember that under the U.S. Civil Rights Act, government agencies can be held liable for disparate impacts of exams used in hiring.  Under this provision, minorities could have sued New Haven if they had used the firefighter exam results.   To find for Ricci, a court would either have to throw out the disparate impacts provisions of the Civil Rights Act and the EEOC guidance memoranda, or modify them so significantly as to effectively undo them.   Talk about advocating judicial activism!

The Republicans accuse only judges they think liberal of being "activist" and "legislating from the bench".   They seem not to see their own positions as activist or based on a need to reach a desired outcome regardless of law or precedent.  (If by judicial activism one means overturning precedent or ruling legislation unconstitutional,  who is more activist than Justice Scalia?)  

Lacking any real evidence to support their smears, the Republican leadership have resorted to accusing Judge Sotomayor of supporting judicial activism by taking out of context a comment she made in a law school workshop effectively reversing the clear meaning of her comment.  In smearing her as an activist, they deliberately ignore her 17 year record on the bench which clearly places her within the mainstream.  The absurdity of their desperate need to distort and politicize this question was brought into focus recently when the Republicans, as if on cue, argued in unison that empathy, which President Obama cited as an important quality in a judge, was a code word for bias.  

The Ricci case gives the Republicans an opportunity to show just how committed they are to their ideal of an unemotional, non-legislating judge who follows the letter of the law.  So far, they seem more than willing to throw away their self-avowed commitment to this ideal when its politically convenient.  Shockingly, the Republican leadership, as reflected in the statements of their "civil rights activists" Gingrich, Tancredo, KylHuckabee, Limbaugh and Buchanan, seem to be advocating for bias and against the rule of law in the Ricci case.  

The Republican "civil rights activists":

The jaw-dropping tastelessness of Gingrich's twitterring on this subject is explored here.  He took time out from filming a documentary at Auschwitz to baselessly slander Judge Sotomayor as a racist.  

Tancredo, who proposed building an anti-immigrant wall not on the Mexican border, but well north of it to exclude U.S. Hispanics, has also called the judge a racist. 

Think Progress reminds us (read here) that: 

Remember, Tancredo is the lawmaker who called Miami a “third world country” because of the number of Latinos there, criticized presidential candidates for “pandering” by participating in a Spanish-language debate, and accused immigrants of “pushing drugs, raping kids, and destroying lives.” He said the issue of immigration is “whether we will survive.”

He's also the dude who believes the answer to Islamist terrorism is threatening to nuke Mecca. (Read here and here.)   After making that threat (actually the second time he'd done so on the record) during his candidacy for the Republican presidential nomination in the last election, he then accused Muslims of unfairly targeting him.   So he has some experience with hypocrisy in general, and with making spurious charges of bigotry against the targets of his bigotry in particular.

Mike Huckabee, in running for the 2008 Republican presidential nomination, threatened to summarily order the between 12 and 20  million undocumented immigrants in the country to immediately register or be rounded up and deported.  Suffice it to say, he wasn't going for the Latino vote.  (Read here and here.)   Huckabee took this extreme anti-immigrant hard line in response to Tancredo accusing him of being soft on undocumented immigrants.

In his 2006 senatorial campaign, Senator Kyl ran a TV ad concerning anti-terrorist legislation which featured an image of him standing on the Mexican border, a move which some considered to equate immigration from Mexico with terrorism.  (Read here.)

I hear tell that Limbaugh and Buchanan have also been accused of being racists.

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