WH Fighting Back On GOP Ricci Deceptions

By Big Tent Democrat, Section Supreme Court
Posted on Mon Jun 08, 2009 at 10:51:04 AM EST
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Because I am not on the White House talking points list, I have to read Greg Sargent to find out what the White House is pushing out there on the Sotomayor nomination:

I’ve obtained a set of White House talking points, privately distributed to outside liberal allies, that chart an aggressive counterattack against foes of Sonia Sotomayor, claiming that critics of a major ruling “wish to reignite the culture wars of the past” and are “grasping for attacks in the face of a strong nominee.” The new talking points — which hit back more aggressively than earlier ones — show the White House anticipates a fresh onslaught of attacks on her widely-cited ruling in Ricci vs. DeStefano when the Supreme Court rules on this case, perhaps this week. The talking points suggest the White House thinks the debate will shift to this case and that the attacks have some potential.

(Emphasis supplied.) I think Ricci provides potential -- for properly labelling the Roberts Court as a brazen extreme conservative judicially activist Court with no deference for the Legislative Branch. More . . .

No need to rehash what I have already written here. Or to revisit what others have pointed out. But here is the White House talking now:

Ricci v. DeStefano

* Judge Sotomayor was one member of a three-judge Second Circuit panel that ruled in Ricci, the New Haven firefighters case.

* The decision is an excellent example of judicial restraint. Although the judges were very sympathetic to the firefighters discrimination claims, they found themselves bound by Second Circuit precedent and unanimously affirmed the lower court decision. That lower court decision said that a city may evaluate whether to retain an employment promotion test that would have allowed essentially no minority candidates to be promoted within the fire department….Ricci v. DeStefano

* The panel decision has been criticized for not reaching out and deciding important constitutional questions, but this would have run contrary to the idea of judicial restraint because the outcome was controlled by federal statutory law and longstanding Second Circuit precedent. Those important constitutional questions are better left for the Supreme Court, which has taken the case…

* There has been an effort by some folks who wish to reignite the culture wars of the past to define this case as an affirmative action case. This is not a case about affirmative action—the City of New Haven had no relevant affirmative action plan in place—this was one of many employment discrimination cases under Title VII to come before the Second Circuit.

* Some people are trying to criticize Judge Sotomayor for being a judicial activist even as they criticize her for judicial restraint in Ricci. This demonstrates that they are grasping for attacks in the face of a strong nominee. They simply can’t have it both ways.

Weak tea imo. The real line of argument is that the Roberts Court will be making a brazen extremist attack on the Legislative Branch and a 38 year old SCOTUS precedent for no other reason than they think they know better than the elected representatives of the People.

The real extreme conservative judicial activists are the Roberts Wing of the Supreme Court.

Speaking for me only

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WH Fighting Back On GOP Ricci Deceptions | 52 comments (52 topical)

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This is the Obama WH's MO (5.00 / 1) (#1)
by andgarden on Mon Jun 08, 2009 at 10:58:34 AM EST

It's not clear that they believe any particular issue of principle is worth fighting for, and the ultimate sin is "reigniting the culture wars," as if the flame had ever gone out.

"reigniting the culture wars" (none / 0) (#3)
by Capt Howdy on Mon Jun 08, 2009 at 11:02:15 AM EST

translation - having an opinion or taking a side in the culture war


Plus they aren't all that good at (none / 0) (#4)
by oculus on Mon Jun 08, 2009 at 11:03:42 AM EST

writing power point presentations. Not nearly punchy enough.


: You may be right. (none / 0) (#5)
by lilburro on Mon Jun 08, 2009 at 11:05:05 AM EST

I am imagining Wolf Blitzer reading this, and then saying, "But isn't she racist??"

brazen extreme conservative judicially activist (5.00 / 1) (#12)
by bluesmoke on Mon Jun 08, 2009 at 11:28:49 AM EST

The left will not be able to use the a "Ricci Case" reversal as a talking point that the Robert Court is out of the main stream because the facts in the case are repugnant to mainstream america.

: I have wondered (5.00 / 4) (#16)
by Capt Howdy on Mon Jun 08, 2009 at 11:33:23 AM EST

why someone doesnt make the point that white people should not be so quick to jump on protection of minority rights since they are going to be one in a few years.

These talking points are useless, (5.00 / 2) (#21)
by Anne on Mon Jun 08, 2009 at 11:46:23 AM EST

in my opinion, and I predict that they will be looked over, considered and then abandoned by the media because 99% of people who watch/read mainstream news haven't the vaguest idea what the difference is between Title VII and affirmative action, and neither do Wolf and Lou and Brian and Katie and Charlie and Brit, or the WaPo or the NYT, who are not going to take precious air time/column inches to explain it.

Oh, sure, they could get some so-called legal expert on to hit the high points, but I don't get the impression that anyone in the news business is particularly concerned with educating and informing the public.

All people seem to care about is "hard-working, dyslexic WHITE firefighter denied promotion" - and that is in large part due to the failure of the media to properly analyze the case long before Sotomayor was nominated to the Supreme Court.

And now, the uneducated public - and more than a few from whom we should expect more, like members of Congress - only cares that Sotomayor was part of what they see as an unfair/wrong decision, and that is all the proof they need that she's a racist.

If these are the best talking points the Obama WH can muster, I don't think they are going to do much to stop the caterwauling from the right.

: To your point (none / 0) (#25)
by NYShooter on Mon Jun 08, 2009 at 12:16:06 PM EST

About those who "we should expect more......"
Yesterday (I think it was on 60 minutes) a mutant, purporting to be a reporter, "interviewed" Ben Bernanke. Here was an opportunity to put it straight to the point man, one on one, regarding "the greatest heist of all time" perpetrated on the American public.
If there was a dumber, more clueless, and/or less informed "reporter" on the face of the planet (not counting Mika Brzezinski) I'd like to know who it would be.
Typical "tough question:"....."So, what have we learned from this episode?"
Please, somebody take me out back and shoot me.

I think (none / 0) (#2)
by Steve M on Mon Jun 08, 2009 at 11:02:08 AM EST

that they make a good point about it not being an affirmative action case.

Not for nothing, but Justice Kennedy today: (none / 0) (#6)
by andgarden on Mon Jun 08, 2009 at 11:08:36 AM EST

Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case. This does not mean the inquiry is a simple one. "The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth." B. Cardozo, The Nature of the Judicial Process 9 (1921).

Link for that? (none / 0) (#8)
by Big Tent Democrat on Mon Jun 08, 2009 at 11:20:58 AM EST

Interesting statement for Kennedy to make in these days.


I think that is from this (none / 0) (#10)
by Capt Howdy on Mon Jun 08, 2009 at 11:25:28 AM EST

from this

HUGH M. CAPERTON, et al., PETITIONERS v.
A. T. MASSEY COAL COMPANY, INC., et al.


Yup, it's in Caperton v. A. T. Massey Coal Co. (none / 0) (#11)
by andgarden on Mon Jun 08, 2009 at 11:26:10 AM EST

p. 12 of the slip opinion.

Roberts's dissent is actually interesting, too.


I just looked (none / 0) (#13)
by Big Tent Democrat on Mon Jun 08, 2009 at 11:30:25 AM EST

and I see J wrote about it. What a case.

I am dying to read Scalia's dissent given his own "vacation" with Cheney.


Scalia has real chutzpa (5.00 / 1) (#17)
by andgarden on Mon Jun 08, 2009 at 11:34:00 AM EST

What above all else is eroding public confidence in the Nation's judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice.

its pretty easy (none / 0) (#18)
by Capt Howdy on Mon Jun 08, 2009 at 11:38:35 AM EST

for him to make that case when people are suing over their crunchberries


No, not really (5.00 / 1) (#19)
by andgarden on Mon Jun 08, 2009 at 11:40:21 AM EST

The idea that Scalia of all people gives a damn about "real worlk justice" is beyond laughable.


: or (none / 0) (#20)
by Capt Howdy on Mon Jun 08, 2009 at 11:44:39 AM EST

imaginary world justice for that matter

: Define "real-world justice?" (none / 0) (#36)
by oldpro on Mon Jun 08, 2009 at 01:01:41 PM EST

It seems to me that Scalia and the Pope know exactly what that is. It has been 'revealed' to them...and they have been 'chosen.' (A lovely Potok book, BTW, and a charming film, The Chosen).

If I'm reading the cards right, (none / 0) (#15)
by andgarden on Mon Jun 08, 2009 at 11:32:06 AM EST

tomorrow Section 5 of the VRA gets booted and Ricci gets reversed.


Do you think maybe (none / 0) (#35)
by jbindc on Mon Jun 08, 2009 at 01:01:37 PM EST

"Empathy" will play a role in this decision (and behind the scenes political maneuvering, even though there isn't supposed to be any)? What better way to "embarrass" the SC nominee in the press by having her most controversial decision (about which most people don't know the facts) overturned by her (hopefully) soon to be colleagues?

Great timing for Republican talking points?


: Most people don't know all the facts (none / 0) (#37)
by Cards In 4 on Mon Jun 08, 2009 at 01:33:51 PM EST

of any SC case but they do know that if the city had thrown out a test that only minorities passed there would be a big stink about their decision.
Most SC decisions are taken at a gut level by non-lawyers. They don't give a flip about 150 pages explaining the decision, just how they feel it should have been decided.

What about (none / 0) (#40)
by BackFromOhio on Mon Jun 08, 2009 at 02:31:08 PM EST

Scalia's relationship to counsel who argued Bush v. Gore?


Well (none / 0) (#7)
by Maryb2004 on Mon Jun 08, 2009 at 11:12:12 AM EST

The real line of argument ...

We need to keep making that argument because over the long haul it would be helpful to have an informed media if one of the conservative judges dropped dead or resigned on Obama's watch and Obama got to replace him. It's a good argument about why you would want to replace one of them with someone more reasonable and less activist(lol!).

But as far as Sotomayor goes, I can see the point in the administration not declaring war on the conservative wing of the court right now. They don't need to do that in order to get her through the confirmation process.

No reason we can't do it though. It's a long war. Good post.

Sure (5.00 / 0) (#9)
by Big Tent Democrat on Mon Jun 08, 2009 at 11:22:28 AM EST

WH is choosing weak tea.

I am not saying there is something better for them to do, just that what they are doing is pretty ineffective.

Honestly, the GOP botched this so bad when they played the race card so brazenly.

As long as the GOP is like this, Dems will find it hard to lose.


: they will (5.00 / 1) (#14)
by Capt Howdy on Mon Jun 08, 2009 at 11:30:37 AM EST

probably find a way to snatch defeat from the jaws of victory. like usual.

Kind of difficult to envision how the WH (none / 0) (#22)
by oculus on Mon Jun 08, 2009 at 11:50:41 AM EST

could effectively defend Sotomayor on "Ricci." For example, the procedure is a mess. How often does a district court grant MSJ on an issue of first impression based on deciding, as a matter of law, the public entity's only motive in not using the test results was to avoid liability? Strange. Next, the court of appeals files a per curiam, unsigned, unpublished opinion, Plaintiffs request en banc hearing. Three judges (including Sotomayor) issue a longer, signed opinion. The court of appeals decides not to hear the case en banc. Judges, including Sotomayor, further justify the previous signed opinion. Judge Cabrenes writes the equivalent of a published opinion in dissent. He seems to have gotten it right.

Issue of first impression? (none / 0) (#23)
by Big Tent Democrat on Mon Jun 08, 2009 at 11:53:37 AM EST

Decidedly not an issue of first impression.

Ask how summary judgment in antitrust cases works . . .


Issue of first impression due to this (none / 0) (#28)
by oculus on Mon Jun 08, 2009 at 12:33:06 PM EST

apparently being the first case in which the board decided to toss out the test results because not enough minorities passed the test. At least that is what Judge Cabranes stated.

I could have saved oodles of time if federal district court judges were so quick to grant MSJs in 42 USC section 1983 cases.


Not true (none / 0) (#32)
by Big Tent Democrat on Mon Jun 08, 2009 at 12:44:12 PM EST

There is a case right on point in the 2nd Circuit.

It was not at all a case of first impression.


And Cabranes did not say (none / 0) (#33)
by Big Tent Democrat on Mon Jun 08, 2009 at 12:44:53 PM EST

it was a case of first impression, IIRRC, he said it was an important case.


Justice Cabrana begins his dissent (none / 0) (#34)
by oculus on Mon Jun 08, 2009 at 12:58:26 PM EST

with "case of first impression in our circuit."

Then he was wrong (none / 0) (#38)
by Big Tent Democrat on Mon Jun 08, 2009 at 01:56:47 PM EST

Did the goal post just move? (none / 0) (#39)
by oculus on Mon Jun 08, 2009 at 02:23:52 PM EST

On that issue (none / 0) (#46)
by Big Tent Democrat on Mon Jun 08, 2009 at 03:30:01 PM EST

I don;t think so.

Cabranes was RIGHT that the issue deserved a careful and reasoned opinion, not summary disposition.

Cabranes was wrong that the issue was one of first impression.

Indeed, Cabranes was wrong about a lot of things in his dissent. Parker's concurrence is quite persuasive on those points.

Where Cabranes was RIGHT was that the panel should have written a detailed reasoned opinion in the case.

Better yet, an en banc 2nd Cir. should have addressed the issue.


: Having worked at a state DCA, (none / 0) (#47)
by oculus on Mon Jun 08, 2009 at 03:34:37 PM EST

I speculate the judges who agreed to the initial unpublished per curiam opinion (probably written by a central staff attorney) engaged in furious CYA late. Tempest.

BTW (none / 0) (#24)
by Big Tent Democrat on Mon Jun 08, 2009 at 11:55:15 AM EST

While I agree with Cabranes' view, his was the one that was out of the norm.

A well reasoned opinion would have been the better course. BTW, I bet Cabranes would have sustained the district court, citing Griggs.


Judge Cabrenes thought (none / 0) (#29)
by oculus on Mon Jun 08, 2009 at 12:34:24 PM EST

the trial judge incorrectly granted the MSJ.


: I disagree that he wrote that (none / 0) (#31)
by Big Tent Democrat on Mon Jun 08, 2009 at 12:43:32 PM EST

He disagreed with the disposition by the appellate panel.

The problem with Ricci (none / 0) (#26)
by bocajeff on Mon Jun 08, 2009 at 12:23:41 PM EST

isn't the legal analysis (even though that's what it should be) but it's more about the social and moral implications of the ruling...i.e. race based preferences and the effects to the people involved.

I'll use a sports analogy: The top 3 runners advance to the finals based on their time. Except if the top three are all from the same ethnic group. If the top three are from the same ethnic group then we will have a do over with a new set of criteria. It may be wise and beneficial to have this diversity. It may be lawful to have this diversity. But is it fair or right?

A paper and pencil test is not like (none / 0) (#27)
by andgarden on Mon Jun 08, 2009 at 12:26:55 PM EST

a 50 yd dash. Making the comparison is really quite stupid.


: Should have stopped w/your first (5.00 / 0) (#30)
by oculus on Mon Jun 08, 2009 at 12:36:15 PM EST

sentence, IMO.

Civil rights law trumps all? (none / 0) (#41)
by diogenes on Mon Jun 08, 2009 at 02:41:18 PM EST

Are you saying that if a state says that interracial marriages are illegal and the Roberts court declares this unconstitutional that the Roberts court would be an ACTIVIST court? Ricci is purely a civil rights case. If you read the history of the exam design, you will note that the city took extreme efforts to design an "equal" exam.
Let the majority of the American people judge Sotomayor by her position on the case.
Affirmative action is a spoils system mostly benefiting rich blacks/latinos (rare exceptions of poor ones; Obama was a professor's kid, even Sotomayor went to private school) while taking spots away from Asians. That's the fact.

: it would be an activist court (none / 0) (#45)
by CST on Mon Jun 08, 2009 at 03:29:24 PM EST

what you fail to realize is that conservatives use "activist" as a dirty word. Personally, I see nothing wrong with activism as long as it is legally correct (in line with the constitution).
What is being pointed out with the "activist" argument is the double standard with which conservatives use the term as a dirty word, while being activists themselves.

Not just a Pencil and Pen test... (none / 0) (#42)
by Suze on Mon Jun 08, 2009 at 03:02:45 PM EST

The test that Ricci and the other firefighters took was not just a "pencil and paper" test but also involved an oral, situation based component. Another key fact, which the city took great pains to avoid publicizing, is that a minority-dominated group of 30 high-ranking fire service professionals from around the nation rated the candidates in the situation-based phase of both exams. The city admitted the group's ratings were fair and accurate.

The bottom line is...there was nothing wrong with the testing instrument. Some folks passed. Some did not. How many of us have ever failed a test? Did we deserve a "do-over" at the expense of our classmates who studied and passed? I don't know about you but if I was taking the Bar exam and passed it only to be told not enough left handed folks passed it and I had to retake it I would raise holy heck and then some. This promotional test for those firefighters is no different. They all had the same study materials and the same work experience - and the only "culture" any of them needed to relate to for this test was the culture of fire fighting.

Hmmm (5.00 / 0) (#44)
by Big Tent Democrat on Mon Jun 08, 2009 at 03:27:11 PM EST

"The bottom line is...there was nothing wrong with the testing instrument"

You mind if we voir dire before we accept you as an expert on the issue?


Not an expert on the exams per se... (none / 0) (#48)
by Suze on Mon Jun 08, 2009 at 03:55:52 PM EST

Not an expert on the exams but I have studied this case and from what I have read - and what has been revealed - is that the exams did not, as asserted by New Haven, "discriminate on the basis of race." They discriminated on the basis of qualifications. The civil service board deadlocked, but its chairman, a lawyer, voted to certify the eligibility lists, stating the evidence called for it.

The city admitted in the lower courts that it had no basis to impugn the exams. Before the Supreme Court, however the city lawyers backpedaled and admitted exam "flaws" for the first time.

City officials blocked production of their own experts' report validating both tests and later had the gall to assert they acted in good faith. They solicited three other experts to address the civil service board in 2004, but none could impugn the exams.

One of the experts was a highly credentialed fire and homeland security official who was black. When he advised that the tests measured for knowledge commanders should possess, the city's lawyer turned on him.


: I see (none / 0) (#49)
by Big Tent Democrat on Mon Jun 08, 2009 at 04:27:39 PM EST

you are an expert on "the case."
Are you an expert on "the law" as well?
I think not.

Can she survive a reversal? (none / 0) (#43)
by bluesmoke on Mon Jun 08, 2009 at 03:15:10 PM EST

A 5-4 reversal would be easy for Sotomayor to overcome.

A 8-1 or 9-0 reversal would probably sink her nomination.

: I don't think either scenario (5.00 / 0) (#50)
by indy in sc on Mon Jun 08, 2009 at 06:58:08 PM EST

sinks her nomination. At this point, I don't think anything sinks her nomination barring video of her kicking puppy dogs.
She will have plenty of opportunity to explain her decision and if it is ultimately overturned, even unanimously, she can explain that she stuck to the precedent by which she was bound and the SCOTUS has decided, not that she was wrong, but that the relevant precedent was wrong and needed to be overturned.

Overstating Rici's Significance (none / 0) (#51)
by blogname on Mon Jun 08, 2009 at 08:25:14 PM EST

The notion that one case could "sink" her nomination is preposterous. Circuit courts get reversed all the time. In the current conservative era of the Supreme Court, the Ninth Circuit has the highest reversal rate. Apparently, the average Ninth Circuit judge would not qualify to sit on the Supreme Court -- using the logic of people who would use Rici to defeat Sotomayor.

Also, how many other judges get blasted for decisions they wrote, but which were subsequently reversed? If this is the standard then every nominee in history who has an opinion overturned should not sit on the SCT.

PS: The thought of 8-1 reversal seems "out there." If Kennedy follows the logic of his concurrence in Parents Involved, then the City of New Haven should prevail. Alas, I do not believe Kennedy is actually committed to his "race conscious," but "race neutral" reasoning. It just makes him feel "good" as he votes to strike down laws that use race for remedial purposes. But then again, he could disprove my suspicion of his position.

that would be ok, (none / 0) (#52)
by cpinva on Mon Jun 08, 2009 at 08:52:58 PM EST

At this point, I don't think anything sinks her nomination barring video of her kicking puppy dogs.

if they were pro-choice, female, hispanic/black puppy dogs.

btw, ricci was denied nothing. even had the test been upheld, with the concurrent results, it was merely one part of the promotion process, not the promotion process itself. it put those who passed on the promotion eligible list, but made no guarantee of actual promotion.

this is actually pretty common, especially in government.

as an example, in order to be even placed in the position for senior auditor, i had to take and pass "mergers, acquisitions & liquidations", a five week course, with tests. before i could be accepted into the class, i had to take a pre-test, and pass that.

however, success in both of those was no guarantee of promotion; work product, annual fitness reviews and interviews also were involved. i had to make the BQ (Best Qualified) list, before i made it to the interview stage. oh, did i mention that everyone on the BQ list was also a CPA?

so, while i sympathize with mr. ricci, there are no guarantees in life.