Was Sotomayor Reversed, or Did the Supreme Court Change Course?

J.D.
Jun 30, 2009 8:31 AM CST

The activist who writes for that activist publication is a little confused. I think it can be simultaneously true that “Sotomayor was reversed” and the Supreme Court “shifted course.” The two aren’t at odds with each other.

J.D.
Jun 30, 2009 9:33 AM CST

Even still, something can be both racially motivated and supported by precedent. We’ve seen that throughout legal history to be sure.

But again, I’m just a white male who doesn’t have the richness of experience enjoyed by a wise Latina woman.

Latina Like it or Not
Jun 30, 2009 10:37 AM CST

J.D. why do you take Sotomayor’s pride in her ethnic roots as an insult to your status as a white male?  Would you argue with the fact that you do not have the birthing experience that a mother who has gone through labor has?  This is analogous to a Latina judge ruling on cases in which her experience may make her wiser than someone who has not been through a similar experience.  If white males are as wise as black men and women who had a first-hand experience with slavery or segregation, why did it take so long for white males to understand that slavery and segregation were wrong?  Why did it take so long for white males to recognize that women, including white women, should have the right to vote as full citizens of the U.S.?

B. McLeod
Jun 30, 2009 11:41 AM CST

I agree with Latina on the point that a person can readily take pride in their ethnicity without being hostile or discriminatory to people of all other ethicities.  I have a sense that the far right pinned too much of its criticism on this one case, both because Judge Sotomayor was only one member of the panel, and because the panel’s ruling was actually adverse to the only Hispanic litigant in the case.  Further, the einsatz peanut gallery has completely failed to deal with the absence of any identifiable history of racism in Judge Sotomayor’s extensive prior service on the bench.  It is just a made up argument, without factual support.

B. McLeod
Jun 30, 2009 1:08 PM CST

Somehow, I don’t really see society coming together with the little group clustered around J.D.‘s “White Power” banner.  Also, I don’t see that little group actually having enough mainstream influence to stop Judge Sotomayor’s confirmation.

DR
Jun 30, 2009 5:32 PM CST

To No. 11:  I wouldn’t worry yourself with J.D.‘s comments.  I’m 46 and I’ve never met a white male or have had a relationship with a white male who played the race card.  Why?  Because most of the white men I’ve associated with have been well-adjusted, confident and successful adults who don’t feel threatened by things that may get in their way of success and happiness.  And by “success and happiness” I don’t mean getting into an ivy league school or getting that coveted job over the minority person, I mean people who have achieved personal satisfaction and happiness whether it be through individual accomplishments, family relationships or anything else that most of us measure our happiness by…

I agree with B. McLeod…mainly because most white people aren’t jumping the discrimination bandwagon.  You wanna blame black people and Hispanics for your failures…you go right ahead…but honey, it ain’t so conservative of you to blame other elements of society and accompanying policies for your personal failures.

DR
Jun 30, 2009 8:19 PM CST

Peter L. Wagner:  a very good post.  The thing that encourages me about this decision is that perhaps we have reached a point in our history where we can ask these types of questions.  I think that 20 or 30 years ago, it may have been a different dynamic.  Qualified people (even firefighters) were denied that opportunity simply because of their race.  Things have changed a lot since then, and for that we can be glad.  I think we can focus more on how much we have progressed and less on the issue of “racism.”  Not denying, though, that racism and bigotry still exists in some circles.

barbara res
Jul 1, 2009 5:23 AM CST

A while back, I remember posts on this board that asserted a 6 to 1 result was not significant.  No need for details.
You can look at this issue two ways and reach the same conclusion.
1. There is a city which has a non white majority.  A good percentage of the leadership in the civil services should be non-white.  (The US Army’s argument for affirmative action)
2. Tests employed should not be discriminative in nature, in any way, including, access to study materials, etc.
(By the way, imaging if it was illegal to hire tutors for SAT - so many more poor people would get into better colleges.)

I used to be associated with a union.  The only apprentices were sons of journeymen.  Not only were they white, but almost all a particular ethnicity.

Things take time.  You can wring your hands figuring out if the tests are perfect, or you can look at the results.

Robert
Jul 1, 2009 6:01 AM CST

She was reversed. 

It doesn’t really matter whether the court changed course and she had followed the rules.  She was reversed.

The fact is, discrimination is discrimination, and I don’t have to be a Latina Woman to be able to see it. I don’t care if the cause of the discrimination against whites in the case of the New Haven firefighters was a fear of a lawsuit by non-whites, it was still discrimination.  “Wow, only white guys passed this test, it MUST be biased.” Doesn’t that sound like discrimination to you? It does to me. It didn’t to that Wise Latina Woman.  And she was reversed.

She’s a Judge.  Don’t you people understand what that means? She’s supposed to apply the CONSTITUTION, not “what other people have said about the Constitution.” 

Discrimination based on race is barred by the Constitution. That’s clearly what happened in New Haven.  She didn’t apply that standard. Whether or not she thought, as a Wise Latina Woman, that she was applying what the USSC had said earlier, she was not applying the Constitution.

And, dare I say it, she was reversed.

Bill
Jul 1, 2009 6:19 AM CST

This whole thing demonstrates only that far too many in this country still are unable to get past “race.”  I belong to one race: the human race.  I am of one country: the United States of America.  Although my heritage is Anglo-Saxon Protestant, I do not consider myself to be an “English-American” or any silly hyphenated anything.  If you’re American, you’re American, period.  We have lost our sense of national identity.

If a third-party certified, race-neutral test results in only black or only white people passing, is that truly a discriminatory action?  The keys are (1) whether there was any discriminatory intent (there was not here) and (2) whether the test actually tests only that knowledge, skill and ability necessary to do the job, and does it do so in a way that is not expected to disadvantage any particular race?  If the test covers certain types of math, for example - is there a different math for white people than for black?  If the test covers firefighting techniques - which are based on scientific principles - physics and so forth - is there a difference in the way a black person should fight a structure fire versus a white person?  Of course not - it’s a silly notion. 

In this case, the town apparently did everything it had to do to comply with Title VII requirements, including having the test certified by a third party.  How can the town then be held accountable if no black candidates passed the test?  Mr. Ricci, if anything, despite suposedly having the “advantage” of being white, was at a DISadvantage - he is dyslexic.  He quit a second job, bought all the books, hired someone to read the books onto tape, and studied his butt off to pass the test.  And he passed with extremely high marks.

And then the race-baiters come screaming in because the wrong people passed the test.  As the Court found, there simply was not a shred of evidence that there was anything resembling discrimination in the test.

Just goes to show how absurd we have become regarding the whole race discussion.  Government is not permitted to and should not inquire into or know the skin the color of those who would benefit from its services.  Read Justice Harlan’s dissent in Plessy v. Ferguson:

“In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.  ...  I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved.”

I wonder if the right rev. in New Haven would have raised the ruckus he did had only black firemen passed the test.  Would such a result have been any more or any less discriminatory?

JP Gal
Jul 1, 2009 7:01 AM CST

Sotomayer was one of a panel of three judges on the US Court of Appeals for the 2nd Circuit that issued a PANEL decision affirming the district court’s decision to throw out the test because of its discriminatory impact—as required by then-existing Supreme Court precedent.  We do not know who on the panel authored the opinion. 

Focusing on this one PANEL opinion does a great disservice to a judge who has almost two decades of experience (and has issued hundreds of opinions) on the bench.  She has been reversed by the Supreme Court only two or three times —much less than the seven or eight reversals Judge Alito had when he was appointed to the Supreme Court, and he had been on the Third Circuit Court of Appeals for a much shorter time.

BlkmanWalking
Jul 1, 2009 7:33 AM CST

White men are merely the accepted scapegoat for laziness, ignorance and stupidity.  If a black person fails an employment exam, it’s “the man keeping him down” and not the fact he did not study hard enough or work hard enough. There is no personal responsibility - it’s always someone else’s fault.  Affirmative action is used to cure minority misfeasance.

On the Chelsea Lately show last night a black guy talked about how much he hated Asians. An Asian guy talked about how he hated fat black women.  Everybody laughed.  Sotomayor speaks about how a wise Latina woman’s decisions are better than a white man’s decisions.  And, white men are required to just keep their mouth shut and take it.

There is no white man alive today that caused slavery. In fact, it was black African’s who sold black Africans into slavery to begin with.  There were white slaves too.  There were indentured servants who were treated worse than black slaves.  Today, in Oklahoma, the Indian tribes still refuse to recognize the descendants of their white slaves. The Indians captured and raped white women in their own genetic cleansing exercise. But, only the American atrocities are spoken about. Oh by the way, it was the white man who put a stop to slavery. Today in African nations, slavery is still a way of life. But, we don’t want to talk about that do we.

There is now a black president. He was elected by white men and women. This is evidence that “the man” is not keeping minorities “down.” So, those people who continually blame the white man for their own lack of competence and intestinal fortitude need to look into the mirror and admit they are simply losers by their own fault.

Hyphenated
Jul 1, 2009 7:55 AM CST

Why doesn’t anyone want to be an American anymore?  Minorities put their ancestor’s country before their own.  African-American, Mexican-American, Iranian-American, Iraqi-American, Israeli-American.

When my ancestors came through Ellis Island they each had only one goal: to become an American.  They learned to speak English.  They worked hard and menial tasks until they could prove their worth and advance. They read books (I have them all) to improve their education about the United States and democracy and their professions. 

They were proud to be American and did not sit around complaining.  They did not blame anyone for “keeping them down.”  They were poor, hardworking and proud to have the opportunity to succeed.  That is the difference. Entitlements. Today, minorities believe they have a right to be successful just by showing up.  There is no pride in self, no pride in being just an American, no ambition.

Instead, minorities hyphenate themselves in order to prove they are NOT American.  The hyphenated minorities focus their efforts on segregating themselves from being just an American. Why? Because they have no pride. They do not want to be American. They want success without effort.  They want wealth without work. They want to retain their foreign culture rather than become American. African-American’s have gone so far as to create their own language just to they can keep themselves segregated and fight against becoming American.

KJ
Jul 1, 2009 8:54 AM CST

Please speak on racism, discrimination and unfairness as it is a first-hand experience for you.  Otherwise you are speculating on its affects, what it does, what it means and how to deal with it and you cannot speak intelligently on the topic beacuse you have no point of reference and this is one topic requiring a point of reference.

If you have suggestions on how to make things equal in America - please share otherwise you should stick to what you know for sure.

It is unfortunate this country has been built on the backs of minorities without a living wage or even basic human rights.  Lets not forget.  Correcting that wrong will take nothing short of people putting their humanity before their skin color - which aint going to happen anytime soon,  Especially when we have whites claiming reverse discrimination.  Yes, discrimination is bad in any setting but my adage is “welcome to my world” and the world of so many racial minorities in this country.  But Agreed - its bad.

Now then, I believe we are speaking more on socio-economic status vs. race.  There are people of all walks of life in the poorest social strata in America.  When the poor have the same access the rich have - things will begin to equal out.

What we are looking at with “discriminatory” or unfair practices in these different race-based decisions in existence today is course correction from discrimination and unfairness from the past.  Whites have a voice and have always had a voice to highlight their rights and the discrimination they have felt but I guess it is difficult to watch the other kid get the lollipop for winning the race when you feel you should have received it sans all of the extenuating circumstances like - the other kid’s achilles heel was cut and shoelaces tied together and in spite of all that he finished just seconds behind you the winner.  Notwithstanding the obvious sarcasm and vulagarity of that example - that is real talk and analagous to what we are dealing with today.

DR
Jul 1, 2009 8:59 AM CST

To:  #26

First, it is silly to assume that people who identify themselves through hyphenated designations “don’t want to be American anymore.”  More likely than not, most hypenated designations were applied to new immigrants in the late 19th and early 20th century who possessed dual citizenship (new American citizenship plus citizenship of their native, usually non-British country).  This applied to the Irish as well since they were viewed for some time by both white, non-Irish Americans and their British counterparts as sub-human. 

There are many New Yorkers who still view themselves as “Italian-Americans” or “Irish-Americans” even though their families have been here for six generations.  It is more loosely used now to identify with heritage, not nationality.  I think you’ll find this more in areas of high concentration of one ethnic group.  New immigrants have adopted the usuage for much the same reasons.  I would also argue that many of us have encouraged the usage simply because we tend to identify others by their race, religious and ethnic background.  I can guarantee you that many of us, when referring to the neighbors down the street (who are americans) often call them “those Armenians” or those “Mexicans” or those “Russians.”  We propagate the usuage ourselves.

Andy the Lawyer
Jul 1, 2009 9:16 AM CST

Response to #29—One thing threads like this achieve = refutation of any possibility of “intelligent design” in the universe.

P
Jul 1, 2009 9:24 AM CST

What is the point of this “article?” is the ABA Journal now Drudge, just with reprints rather than links?

Daniel
Jul 1, 2009 10:09 AM CST

What I find interesting about the coverage around this particular case is that conservatives are not tying this in to the other times Sotomayor’s judgment has been reversed, which are several. The majority, even, apparently.

Did the Supreme Court change course? Sure looks that way. But over a course of, what, 38 years? I guess that would be expected. Politics is an especially volatile profession.

However, I think the words of a New Haven fireman about this case are worth repeating, “You know, this is not about Judge Sotomayor. This is about 20 New Haven firefighters that were denied promotion on the basis of their race…” (as quoted at newsy.com)

What I’m saying is that I don’t see how this issue is relevant for the news. This kind of thing happens all the time.

Newly Minted
Jul 1, 2009 12:33 PM CST

#7, I’m a white (Jewish) American (but not a hyphenated-American), and was not only raised with no sense of entitlement – for race or any other reason – but was raised with the belief that no such entitlement exists for anyone.  I believe your assertion itself is an overgeneralization of one particular race, unfortunately characteristic of anti-nonwhite racism for decades or longer.

#9, your assertion that “most liberals” are racist is thoroughly unfounded in fact; it is purely based in ideology.  In fact, liberals in this country have historically fought against racism, and conservatives have historically resisted every reform designed to combat racism.  And while conservatives as a group no longer support racism, there has been no arguable polar reversal of the two groups.  In that, #7 is correct to assert the diminution of entitlement is perceived as oppressive by many.

#20, as to hyphenated-Americans ... while I generally agree, you must remember that historically the hyphenated groups were excluded from the national identity you refer to, and so were never really a part of it to begin with.  In fact, at one time, Irish and Italian (both predominantly Catholic) were once considered separate races.  These groups became hyphenated not because they were breaking away from American national identity, but because they were never allowed – whether by society or by law – to be a part of it to begin with.  Thus, while I believe it would be better if we could have a single national identity, it is easy to see how the multi-cultural movement started.

And while your point about Harlan’s dissent is well-taken, it was not then – and was not subsequently for many decades – the law of the land.  The fact that Harlan was right does not alter the extraordinary damage that was done by the other 8 Justices in the case from which he dissented.

#36, Judge Sotomayor has not been reversed a majority of the time – unless you count only the decisions appealed (3 of 5), which has been a very small number compared to her total opinions.  And as you say, this is neither particularly unusual nor relevant.

#37, you must understand that for a long time, “American” meant “white Protestant American” – not explicitly, of course, but in fact blacks, Hispanics, Asians, and even Catholics and Jews were all minorities who had no access to being fully “American.”  And sometimes it still is that way.  That is offensive, and no reason to demand anyone “get out.”  “America – Love It or Leave It” is an inherently un-American statement.

C Bohn
Jul 1, 2009 1:25 PM CST

While writing my previous post “Newly Minted” added a few comments.  As I started to read I was initially glad that someone noted another post’s rash generalizations, but then it was followed by their own.  Racism can be seen in the history of this country, and I presume it can be traced to members of both main parties.  I challenge “Newly Minted’s” “FACTS,” in that my memory quickly draws-up the examples of President Lincoln’s Emancipation Proclamation, Gov. Wallace’s blocking black students at the university door, and the esteemed Sen. Byrd, who withdrew from the KKK when it became politically expedient.  Of course I also think of Congressman David Duke, but few remember that he was initially elected as a Democrat.  “Newly Minted” should remember that as with legal briefs, arguments that create baseless facts are extremely weak.

Hyphen-Agreed
Jul 1, 2009 3:15 PM CST

Re: Hyphenated nationalities. I agree that too many people are using the hyphens to highlight the fact they want to be recognized first and foremost for their foreign heritage. They don’t want to be recognized as American.  The hyphen means these people are here only so long as they get what they want.  It implies they are only temporary citizens.

The problem is created by people immigrating to the U.S. solely for economics and not ideology.  When my ancestors came here it was for the ideology. America use to mean, land of opportunity, religious freedom, and personal rights. 

Today, foreigners show up and expect they we will all bow down to their whims.  They expect America to subjagate our ideology to their foreign culture.

America should be for Americans.  And, if you don’t want to be an American, then take your hyphen and leave.

Hyphenated American and Proud
Jul 1, 2009 6:24 PM CST

On hyphenated names and for all those proud white Americans who feel patriotic because they don’t hyphenate, here it is:  whites, regardless of your or your ancestors’ migration routes, can walk down the street (even if you don’t speak English) and be assumed by the color of your skin to belong in America.  Latinos, Asians and other colored people, on the other hand, are visibly identified by whites as foreigners, even if they were born here.  African-Americans are viewed by whites as blacks (not one of us; not white), even though their ancestors have been here much longer than most white people.  Perhaps the hyphen is a way to find a community in a country that is not ready to embrace non-whites as full Americans.  Stop with the hypocrisy because when whites see non-white people walking down the street most of you don’t think of them as Americans with the same rights as you reserve for yourselves (talk about entitlement).

Newly Minted
Jul 1, 2009 7:14 PM CST

#40, C. Bohn: I was careful to use the terms “liberal” and “conservative” instead of “Republican” and “Democrat,” for the very reasons you state – that the parties’ respective histories are replete with examples of both ideologies at various points, and that southern Democrats were often actually conservatives rather than liberals, at least on racial issues.  I stand by the accuracy of my comments, understanding that the parties themselves are not actually at issue here, though they often appear to be so coincidentally.

#43, Common Sense: You must realize that people are not racists by virtue of their skin color – i.e., whites are not inherently racist, yet you write as though they are.  While this country’s institutionalized racists were certainly white, there are many – perhaps more, even – who did not have the so-called “advantages” of being white that many minorities claim.  I certainly did not get special advantages just from being white.  This is one of the areas where racism begins to pervade the ideology of minorities who have been – either personally or historically – victims of racism, the idea that another race is inherently racist.  It is wrong.

descriminatee
Jul 2, 2009 8:20 AM CST

OK
here are my experiences in being discriminated against
female - not allowed to attend Harvard, etc.
female - not allowed to borrow money
female - legally denied jobs
older female - castigated for being nazi feminest by both males and females
today:  OLD LADY
In extreme pain, went to an emergency room, yes my shirt was inside out but I was coherent
I was treated like a blooming idiot.  Male doctor early 40s - cute actually.

Mikey
Jul 2, 2009 9:16 AM CST

#43, thanks for giving me the best laugh I’ve had all week with the following statement: “Do you think that Obama would have been elected if he had the academic credentials of Bush Jr.? Obama had to be over-qualified to overcome the attacks by ignorant and jealous racists.”  You ARE joking, right?  I’ve read and heard a lot of silly descriptions of Obama, both pro and con, but “overqualified” is a new one.  Love or hate his policies, beliefs, etc., you gotta admit that the guy has done VIRTUALLY NOTHING in his life other than get himself elected.  The vast majority of even his most ardent supporters can’t name one thing of significance he has accomplished, other than to promote himself.  And get real, do YOU honestly believe that he would have had the slightest chance of getting elected (e.g., overcoming the Clinton juggernaut) if he weren’t African-American?  Please.  What percentage of blacks voted for him, like 95%?  Who are the racists?

Also, I’m sorry but you are just plain delusional if you believe that “minorities have to be over-qualified to get the same educational opportunities and jobs” as whites.  Have you checked the admissions statistics at any top-tier colleges or law schools lately?  The average SAT/LSAT scores, HS grades, etc., for admitted minorities (well, other than Asians) are always lower than those for admitted whites.

Do I personally feel discriminated against as a white male American, or threatened by other cultures’ ethnic pride or whatever you want to call it?  No, not at all.  I would hope most people could find something to be proud of in their heritage.  I also consciously choose not to adopt a victim mentality, even when I feel wronged by the world.  But if I had been denied admission to University of Chicago law school while another applicant with lesser accomplishments and lower test scores, who happened to have a different skin color than I do, was admitted, yeah, I can see how it would be hard not to get bitter.

Finally, to #43, 44, 45, 47, et al.: if you feel that you know the horrors of discrimination, the crushing feeling of being judged based on how you look rather than your accomplishments and abilities, then why oh why do you want to perpetuate discrimination, just aimed at “others”?  As I’ve said before, wasn’t the goal of the civil rights movement to judge people fairly based on the merits??  Discrimination in any direction is wrong, and will not ultimately solve any problems, but rather just perpetuate race consciousness.  Let’s rise above past grievances and move on, shall we?