He Rejected Tinkerbell For This?

Since David Souter announced his retirement from the U.S. Supreme Court, much speculation centered on whether The One would nominate Gov. Tinkerbell to fill the open spot. Of course, the fact that she has no judicial experience, has never accomplished anything beyond getting elected (a quality she shares with The One), and has driven Michigan's economy straight off a cliff did not disqualify her from consideration. And there is the arguable point that, far from excluding her, Tink's tax problems (hat tip to Nick for some excellent reporting) gave her instant entree to the short list.

Nevertheless, despite her evident lack of qualifications, Tink was passed over for Sonia Sotomayor of the almighty Second Circuit Court of Appeals. The Second Circuit is based in New York, and it is common knowledge that, for liberals, the source of all wisdom and coolness is New York. Moreover, how could The One ignore a judge who uttered these beauties:

During a panel discussion at Duke in 2005: "All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made."

At UC Berkeley in 2001: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

So, courts make policy and Latina females make better decisions precisely because they are Latina females, which gives them a richer experience than others. Imagine that latter quote reversed -- "I would hope that a wise white male with the richness of his experience would more often than not reach a better conclusion than a Latina woman who hasn't lived that life." What a firestorm that would cause!

Still, one might say that this is all quibbling on the margins -- what about Sotomayor's actual performance on the bench? Uh, well, not good. She has had eight of her decisions reach the U.S. Supreme Court, and six of them were reversed. One was upheld, and one is still pending. This is a record of reversals on a par with the notoriously awful Ninth Circuit from California. For the sake of fairness, though, let's look at the latter two.

In Knight v Commissioner, the issue was whether certain fees incurred by a trust were fully deductible or deductible only to the extent they exceeded 2% of the trust's adjusted gross income. Writing for the Second Circuit, Judge Sotomayor affirmed a Tax Court ruling and held that the expenses were subject to the 2% floor, reasoning that the expenses could be incurrd if the property was held individually as well as in trust. Although the Supreme Court affirmed the result in Knight, it strongly criticized Sotomayor's reasoning, finding that it "flies in the face of the statutory language," a fact which "strongly supports rejecting the Court of Appeals' reading [of the law]."

Even though the Supreme Court affirmed Sotomayor in the Knight case, the result is still troubling because it shows she will jump to conclusions without regard to - and even in spite of - statutory language to the contrary. The fact that she accidentally careened into the correct conclusion in Knight is of little comfort.

The case of Ricci v DeStefano is currently pending in the Supreme Court, and a decision is expected in June. In this case, the city of New Haven, CT, sought to fill vacancies in its fire department. Hiring and promotions were required to be based solely on merit as determined bya competitive examination, so New Haven hired an outside testing firm to develop the exam. Despite their best efforts, however, the results of the exam were racially disparate such that all of the promotions would have gone to white firefighters, with one or possibly two going to a Hispanic firefighter. No African Americans would have been promoted.

Faced with this potential result, the city refused to certify the results of the exam, such that no firefighters were promoted. The city justified its refusal by claiming that, if it certified the results and promoted the white firefighters, it would face a discrimination lawsuit on the grounds that the test, though facially neutral, had a disproportionately negative impact on minorities (also known as a "disparate impact" claim). The firefighters who would have been promoted then sued, arguing "reverse" discrimination.

The Second Circuit affirmed dismissal of the firefighters' lawsuit. Judge Sotomayor's opinion merely adopted the District Court's ruling, without adding anything substantive. The dismissal was based on the conclusion that the city had a good faith reason for not certifying the test -- it was afraid that the minority employees who were not promoted would sue the city, claiming the test was discriminatory. Therefore, the city was justified in discarding the test results solely because of the race of those who passed.

If left standing, therefore, Ricci supports the proposition that a city may discriminate intentionally if it believes that not doing so will leave it open to a claim that it discriminated unintentionally. This, despite the complete absence of evidence that there was anything invalid about the exam.

And, oh, remember how The One wanted a judge with "empathy"? He said: ""We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." Try this on for size, about the lead plaintiff in the Ricci case, who was passed over for promotion, a decision affirmed by the empathetic Sotomayor (as related by Emily Bazelon):

"Frank Ricci is a 34-year-old "truckie"—he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won."

So much for empathy, or maybe the other applicants were more sympathetic. How do you measure someone's empathy-worthiness?

Eight decisions -- 6 reversals, 1 affirmance with her reasoning roundly criticized, and 1 decision on life support at the Supreme Court. Oh brother.

Sotomayor and Tink do have a couple things in common. They both claim to be Catholics and are certainly pro-abortion. And, after 5 years of Sotomayor on the Supreme Court, there's a good chance we're "gonna be blown away."