Schumer Presser On SCOTUS' Ricci Decision

By Big Tent Democrat, Section Supreme Court
Posted on Mon Jun 29, 2009 at 11:47:36 AM EST
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Sen. Charles Schumer (D-NY) just held a press conference on the SCOTUS' Ricci decision announced today. The major points:

SCOTUS sets forth a NEW interpretation, overturning 38 years of understanding of the law.

Sotomayor unaffected by this. (This is an obvious point imo. But I guess it needs to be said.) You know all the talking points.

Andy Pincus, counsel for the National League of Cities spoke and made the strong point that today's Ricci decision makes the position of municipalities virtually untenable. The conflict created by Ricci puts municipalities (and States) in a position where it will be sued by one group or another. In short, the decision is a disaster for States and municipalities. So much for the "dignity" that once so concerned Justice Kennedy.

More . . .

Professor Richard Primus of University of Michigan Law School explained the balance between the goal of eventually reaching a color blind society with the reality of our shameful history of discrimination as a Nation.

Primus notes that (my words) the SCOTUS is intent on creating new policy on these issues. Clearly, Primus is describing an act of judicial activism.

Austin Schlick, the Maryland AG (who filed an amicus brief in Ricci in support of New Haven, stated, the Gang of 5 (my words) was "eager to make new law" (HIS WORDS) in this area.

Schlick emphasized the fact that the Court undermined the policy of "voluntary compliance" that Title VII embodies.

Q - Will Sotomayor be asked about this? Schumer says no in that she will probably hear related cases on the matter. (Think Roberts on Hamdan, which was before the SCOTUS when he was nominated. The SCOTUS reversed Roberts.)

Q - AP predictably regurgitates right wing nonsense that "all 9 Justices disagreed" with Sotomayor. This is obviously false. but that does not stop the AP of course from asking a question premised on an utter falsehood. Rick Primus states that the right wing falsehood is just that, false.

Austin Schlick makes the critical point that while Sotomayor was modest, the SCOTUS majority in Ricci was incredibly activist, even engage going so far as to say that the SCOTUS engaged in unprecedented factfinding instead of remanding for more factfinding.

Schumer is asked about Congress' acting to reverse Ricci. Schumer punts.

Speaking for me only

< Bernard Madoff Sentenced to 150 Years | Arkansas AG: "Judicially Activist " SCOTUS "Makes New Law" In Ricci >

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Schumer Presser On SCOTUS' Ricci Decision | 32 comments (32 topical)

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You have to hand it to Schumer (5.00 / 1) (#1)
by andgarden on Mon Jun 29, 2009 at 11:50:04 AM EST

Would Harry Reid even bother to do a presser like that?

Worse, would you even want him to? (none / 0) (#21)
by ruffian on Mon Jun 29, 2009 at 02:32:55 PM EST

It would be nice to have a majority leader who was also a good spokesperson.


: Yes (none / 0) (#23)
by jbindc on Mon Jun 29, 2009 at 03:16:06 PM EST

But Schumer is on the Judiciary Committee and he's from NY, so that's my guess as to why he did one.

He has it exactly right (5.00 / 1) (#2)
by domer5000 on Mon Jun 29, 2009 at 12:04:46 PM EST

As an attorney that represents cities, they will have now simply have to decide whether they prefer to be sued by white plaintiffs or minority plaintiffs. Justice OConnor warned about putting cities in this position man year ago, in Croson I believe.

Wouldn't it be ironic (none / 0) (#4)
by jbindc on Mon Jun 29, 2009 at 12:08:00 PM EST

if cities had to start cutting services, like, oh, firefighters, and cancel promotions because of this ruling?


: Finish thought (none / 0) (#5)
by jbindc on Mon Jun 29, 2009 at 12:08:44 PM EST

if they had to cut services to pay for all the legal fees they are going to incur because of this ruling.
I hate it when I push "post" too quickly.

Good for Schumer (none / 0) (#3)
by Maryb2004 on Mon Jun 29, 2009 at 12:07:23 PM EST

This is the kind of pressure that needs to be brought to bear on Congress: In short, the decision is a disaster for States and municipalities.

Of course, fixing the problem for municipalities doesn't necessarily mean they'll fix it in the right way.

My guess is that a any fix (none / 0) (#6)
by domer5000 on Mon Jun 29, 2009 at 12:12:34 PM EST

to Title VII would likely to lead to an Equal Protection challenge to the new law. See Scalia's opinion. There are probably four votes to do so, with Kennedy once again as the swing vote.


All the more reason (none / 0) (#7)
by andgarden on Mon Jun 29, 2009 at 12:14:04 PM EST

to immediately pack the Court.


Or as immediately as he can (none / 0) (#8)
by domer5000 on Mon Jun 29, 2009 at 12:15:48 PM EST

which may be a while, unless you know something we dont


I know Congress is empowered (none / 0) (#9)
by andgarden on Mon Jun 29, 2009 at 12:22:38 PM EST

to expand the Court.


wouldn't that be something (none / 0) (#11)
by Dadler on Mon Jun 29, 2009 at 12:28:49 PM EST

pinch me, i think i'm dreaming already.


Where can I read more about this? (none / 0) (#12)
by Faust on Mon Jun 29, 2009 at 12:49:25 PM EST

I had never heard that this was a possibility. I guess I just always assumed that the current number of justices was written in the constitution...but it's actually controlled by congress?


Start by reading (none / 0) (#14)
by andgarden on Mon Jun 29, 2009 at 12:54:23 PM EST

here.

The Court has had a varied composition over the years. I believe, for example, the first Court had 6 justices. It has had as many as 12 IIRC.


: Great, thx (none / 0) (#15)
by Faust on Mon Jun 29, 2009 at 12:55:06 PM EST

: Ok that's really interesting. (none / 0) (#16)
by Faust on Mon Jun 29, 2009 at 12:59:26 PM EST

I do not, however, see anything like that happening from an Obama administration, particularly given that it looks like it didn't do FDR any great favors politcally (based on that short blurb). Still, facinating stuff. I had no idea that 9 was not a number picked from the constitution.

: Never had more than 10 (none / 0) (#18)
by me only on Mon Jun 29, 2009 at 01:09:48 PM EST

and that was only from 1863-1865. Johnson was not allowed to reappoint a tenth justice and by 1869 the court was fixed again at 9. For the last 140 years it has been 9.

It would be fun (none / 0) (#13)
by domer5000 on Mon Jun 29, 2009 at 12:53:40 PM EST

to watch the exploding heads.

Dont hold your breath though


: Yep (none / 0) (#17)
by jbindc on Mon Jun 29, 2009 at 01:00:53 PM EST

Never would happen because it would come back to bite the Dems the next time there is a Republican WH and Congress.

Heh, if Obama wants to avoid disruption, as in (none / 0) (#32)
by jawbone on Tue Jun 30, 2009 at 08:31:56 PM EST

health care reform, he sure won't try any court packing!

That is way too audacious!


It would be refreshing, and perhaps (none / 0) (#10)
by Anne on Mon Jun 29, 2009 at 12:27:19 PM EST

some sort of turning point, if the majority opinion in Ricci ended up exposing these 5 justices for the judicial activists they obviously are, and took away from conservatives and Republicans the ridiculous argument that liberals judges want to make law through their activism and conservatives are the only ones capable of interpreting the law in an objective manner.

It will do my heart good if, during the Sotomayor hearings, the first Republican who dares to raise judicial activism as a reason not to confirm her gets smacked down quickly and decisively.

Smacked down by whom? (none / 0) (#19)
by me only on Mon Jun 29, 2009 at 01:11:28 PM EST

If Sotomayor "smacks down" a senator, she'll risk her appointment.


Oh, I don't know - Leahy, (none / 0) (#24)
by Anne on Mon Jun 29, 2009 at 03:36:37 PM EST

Schumer, Feingold, to name a few.

I don't think I am so stupid as to suggest that Sotomayor do the smack-down herself.


: doubt it. (none / 0) (#25)
by me only on Mon Jun 29, 2009 at 04:23:55 PM EST

The Senate doesn't mind smacking down the Executive Branch from time to time. The Senators rarely have harsh words directed at each other. They do have to work together.
Basically I don't see it happening at all. If nobody made fun of Specter's "super-duper" precedent, I really doubt that anyone is going to pull out a can of whoop ass in these confirmation hearings.

NPR was quick to point out (none / 0) (#20)
by oculus on Mon Jun 29, 2009 at 02:30:51 PM EST

Judge Sotomayor agreed to the per curium opinion. And AP noted the names of the Judges who voted for en banc review and quoted some of Judge Cabrenas's (sp) dissent.

Judge Cabranes disssnet was dissed (none / 0) (#22)
by Big Tent Democrat on Mon Jun 29, 2009 at 02:43:29 PM EST

by the SCOTUS.

None of the issue he wanted addressed were actually addressed.


Open and shut case, don't ya know? (none / 0) (#26)
by oculus on Mon Jun 29, 2009 at 05:26:49 PM EST

I am still amazed no one on SCOTUS thought there was a triable issue of material fact or quoted the lead case setting the standard for an MSJ.


: Indeed (none / 0) (#27)
by Big Tent Democrat on Mon Jun 29, 2009 at 07:34:21 PM EST

Summary Judgment for a plaintiff on a Title VII case would have been nice.
Heck how about citing McDonnell Douglas at least.

Are you saying (none / 0) (#28)
by Steve M on Mon Jun 29, 2009 at 11:26:13 PM EST

Judge Cabranes was smacked down 9-0 by SCOTUS?!?


Judge Cabranes's name appears only (none / 0) (#29)
by oculus on Mon Jun 29, 2009 at 11:33:36 PM EST

on page 23 of the opinion. He voted for the court of appeals to hear the case en banc, so I gather he didn't agree w/the per curiam opinion.


My point was (none / 0) (#30)
by Steve M on Tue Jun 30, 2009 at 06:15:15 AM EST

if the dissent "smacked down" Sotomayor by electing to adopt different reasoning from hers (hence the "9-0" talking point), then the majority must have smacked down Cabranes by failing to adopt his issues as well. Obviously I think both claims are bogus, but I thought I might get away with sarcasm to make a point!


: Too suble for moi. But apparently (none / 0) (#31)
by oculus on Tue Jun 30, 2009 at 11:24:45 AM EST

not for BTD. See above.