Posted in Main Blog (All Posts) on June 8th, 2009 4:39 am by HL
On the June 7 edition of CBS’ Face the Nation, Fox News contributor and former Speaker of the House Newt Gingrich (R-GA) claimed that, in affirming the city of New Haven’s decision to throw out test results that would have resulted in the promotion of several white firefighters in Ricci v. DeStefano, Supreme Court nominee Sonia Sotomayor “accepted the fact that, for clearly racial quota reasons, they shouldn’t be promoted.” While host Harry Smith responded, “some people would say, well, that’s the appellate court’s job is to — you either say yea or nay, and some people would say that was the appropriate response to that lower court,” neither Gingrich nor Smith noted that the opinion Sotomayor joined in Ricci said that U.S. 2nd Circuit Court of Appeals precedent — not “racial quota reasons” — led the court to rule as it did.
Indeed, the opinion, written by Judge Barrington Parker — who was appointed to the 2nd Circuit by former President George W. Bush — and joined by Sotomayor and three other judges, also explicitly stated that the plaintiffs produced no evidence of “the imposition of a quota” in the case. From Parker’s opinion:
The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions — among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm’n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid liability.
Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it is entirely mistaken.
Supreme Court Justice David Souter — whom Sotomayor would replace — made clear what he said was the bind the city of New Haven found itself in, identifying its “damned if you do, damned if you don’t situation” in its efforts to comply with Title VII’s prohibitions on employment discrimination.
As Media Matters For America has noted, in a June 2 column, MSNBC political analyst Pat Buchanan asserted: “Like [former assistant attorney general nominee] Lani Guinier … [Supreme Court nominee Sonia] Sotomayor is a quota queen. She believes in, preaches and practices race-based justice. Her burying the appeal of the white New Haven firefighters, who were denied promotions they had won in competitive exams, was a no-brainer for her.”
From the June 7 edition of CBS’ Face the Nation:
HARRY SMITH (host): All right, well, let me jump to this, then. Is this a fight the Republicans should take and take all the way to the walls?
GINGRICH: This is — this is a solemn obligation of 100 senators in both parties to render judgment on whether a lifetime appointment to be one of the nine people who interprets the Constitution should go to this person. I think the — it’s not a yes or no in terms of picking a fight. It’s — you have to decide — on the Ricci case, for example, where people who had taken a year of their life —
SMITH: This is the New Haven firemen’s case, right.
GINGRICH: The New Haven firemen, who did everything according to the rules –
GINGRICH: — and then she accepted the fact that, for clearly racial quota reasons, they shouldn’t be promoted.
SMITH: Well, and some people would say, well, that’s the appellate court’s job is to — you either say yea or nay, and some people would say that was the appropriate response to that lower court.
GINGRICH: And I think that’s an important national debate.