Ricci Decision Threatens Constitutional Values of Equal Justice for All
In a 5 to 4 decision in the case of Ricci v. DeStefano, the U.S. Supreme Court ruled today that the city of New Haven, Connecticut violated Title VII when it declined to make promotions in the fire department on the basis of a test that disproportionately screened out minority candidates.
The Equal Justice Society joined the Lawyers’ Committee for Civil Rights Under Law in an amicus curiae, or friend of the court, brief urging the Court to uphold New Haven’s efforts to root out discrimination from its promotional process, consistent with civil rights laws and the Constitution. The Lawyers’ Committee brief was also joined by the National Association for the Advancement of Colored People and the National Urban League.
“We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964,” said Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law. “Like Justice Ginsburg, we anticipate that the decision ‘will not have staying power.’”
In this case, the city of New Haven, Connecticut declined to certify the results of a firefighter promotion test based on evidence that the test discriminated on the basis of race. The city also had evidence that more fair and effective tests were available. Rather than making promotions on the basis of the discriminatory test, the city declined to certify the results, and sought to explore less discriminatory alternatives, in keeping with its obligations under Title VII of the Civil Rights Act of 1964. When the city declined to make promotions on the basis of the test results, firefighters who had scored highly on the test filed suit, alleging that the city discriminated on the basis of race.
“Today’s decision ignores the plain language of Title VII, congressional intent and established precedent,” said Sarah Crawford, senior counsel with the Lawyers’ Committee for Civil Rights Under Law’s Employment Discrimination Project. “We still have far to go to fulfill Title VII’s promise of equal employment opportunity. This is a giant leap backward.”
Ideologically-Charged Decision in Ricci v. DeStefano Ignores History, Precedent
In a statement issued today on the Supreme Court’s 5-4 decision on Ricci v. DeStefano, Alliance for Justice President Nan Aron said that the “majority’s opinion ignores our nation’s history, rejects precedent, overturns the judgment of local government officials and makes it more difficult for employers to take voluntary steps to break down barriers to equal employment.”
“Continuing its assault on our civil rights laws, the five conservative ideologues on the Supreme Court today rejected long-standing law to weaken Title VII protections for traditional victims of discrimination,” said Aron.
Before the Court issued its ruling, People For the American Way Executive Vice President Marge Baker said that: “Opponents of Judge Sotomayor have gone to great lengths to use the ruling of her panel in Ricci v. DeStefano against her, and they will surely ramp up their efforts if the Supreme Court overturns the Second Circuit. But the simple fact is that the Supreme Court’s ruling, whatever it may be, will not reflect upon Sotomayor’s jurisprudence.
“Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.
“The full Second Circuit backed up the panel, which came as no surprise. Nearly ten years earlier a Second Circuit panel — consisting of three GOP nominees — reached the same conclusion in a similar case (Hayden v. County of Nassau).
“When a case virtually identical to Ricci came before the Sixth Circuit — Oakley v. Memphis — a panel rejected the plaintiffs’ claims and affirmed the district court ruling. Notably, they did so in an unpublished summary order, and one of the three judges was conservative Bush nominee Richard Allen Griffin.
“In other words, Sotomayor is anything but an outlier. She and the seven other federal judges who decided Ricci and Oakley at the district and circuit levels were unanimous in determining that precedent and federal law required the rejection of the suits.”
LDF: Supreme Court Ruling Leaves in Place Core Provision of the Voting Rights Act
Today, the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder rejected a challenge to the constitutionality of Section 5, the core provision of the Voting Rights Act, said the NAACP Legal Defense and Educational Fund, Inc. (http://www.naacpldf.org) in a press release.
In an opinion authored by Chief Justice Roberts, the Supreme Court recognized that “[t]he historic accomplishments of the Voting Rights Act are undeniable.”
Today’s ruling, which was joined by seven other Justices, recognizes Section 5’s critical importance in addressing voting discrimination faced by citizens throughout our country.
“The entire thrust of LDF’s argument was that Section 5 remains critical to our democracy and, however grudgingly, the Court acknowledges that in its opinion today. In an unusually harmonious opinion, today’s decision upholds the constitutionality of an essential core protection in our democracy,” said John Payton, LDF Director-Counsel.
Payton observed that “Section 5 of the Voting Rights Act protects and shields the rights of minority voters from discrimination. Section 5 has long been symbolic of our nation’s long and unsteady march toward greater political equality. Without its protections, our nation would unnecessarily face the grave risk of significant backsliding and retrenchment in the fragile gains that have been made.”
The Court’s ruling today ensures that minority voters will continue to have the safeguards provided by the Section 5 preclearance process.
The Court expanded the number of places that can seek to “bailout” or exempt themselves from preclearance. However, no Section 5-covered jurisdiction can do so without demonstrating a clean bill of health for a ten-year period.
The bailout provision has proven workable and achievable for those jurisdictions that have sought it. It remains to be seen how the Court’s interpretation of the bailout provision will impact enforcement of Section 5. If, for any reason, today’s ruling renders Section 5 unworkable in the future, Congress could always amend the statute.
“The utility district brought this case to tear out the heart of the Voting Rights Act. Today, it failed. The Voting Rights Act remains one of Congress’s greatest legacies,” said Debo P. Adegbile, LDF Director of Litigation, who argued the case on behalf of Appellee-Intervenors.
Editorial cartoon on Judge Sotomayor has subtext of lynching, stereotypes Latinos
The Oklahoman newspaper printed on Tuesday a racist, sexist and outright offensive “editorial” cartoon.
It depicts Judge Sotomayor strung up by a rope, likening itself to lynching images or a piñata, with President Barack Obama wearing a sombrero, holding a stick and asking a crowd of elephants (Republicans) “Now, who wants to be first?”
The cartoon is captioned “Fiesta time at the confirmation hearing.” See the cartoon here on our ConfirmSotomayor.org blog.
Bittersweet Week: Judge Sotomayor, Prop 8 Upheld, Ron Takaki Passes; Launching ConfirmSotomayor.org
We experienced last week several gut-wrenching and rejoiceful moments.
On Tuesday, May 26, President Barack Obama announced his historic nomination of Judge Sonia Sotomayor to the Supreme Court. On the same morning, the California Supreme Court ruled against marriage equality by upholding Prop. 8. The following day brought news that a preeminent scholar on our nation’s diversity, UC Berkeley professor Ronald Takaki, passed away.
SUPREME COURT NOMINEE JUDGE SONIA SOTOMAYOR
In nominating Judge Sonia Sotomayor to the Supreme Court, President Obama fulfilled a promise to the American people to appoint judges who are well-qualified, grounded in the rule of law and the Constitution, fair-minded and committed to equal justice for all. Judge Sotomayor embodies all these traits.
In the course of a life that began in a housing project in the South Bronx and brought her to the pinnacle of her profession, Judge Sotomayor accumulated more experience on the federal bench than any incoming Supreme Court Justice in the past 100 years, touching nearly every aspect of our legal system.
But Judge Sotomayor’s ethnicity has proven too much of a temptation for the voices of hate and extremism, who instead of looking at her judicial record have launched a vocal rampage that has reached new heights of absurdity, including calling her a “reverse racist” and calling the National Council of La Raza (NCLR) “the Latino KKK without the hoods and nooses.”
Condemn these unacceptable attacks on Latinos and Judge Sotomayor now. Join NLCR and send a message to Chairman Michael Steele of the RNC, House Minority Leader John Boehner, and Senate Minority Leader Mitch McConnell asking them to denounce these statements and restore the nomination process for Judge Sotomayor to a more appropriate and civil discourse.
EJS has also launched a blog and Facebook page in support for Judge Sotomayor. Visit http://ConfirmSotomayor.org and join the Facebook page as a fan. The blog includes a page with information on how you can support Judge Sotomayor.
And if you’re in California, please support our Californians for Fair and Independent Judges coalition so that organizations and individuals here can work together to support Judge Sotomayor’s confirmation. Email Keith Kamisugi at kkamisugi@equaljusticesociety.org for information about joining the coalition.
CALIFORNIA SUPREME COURT RULING ON PROP. 8
The California Supreme Court last Tuesday in a 6-1 vote upheld Prop. 8, the ballot measure discriminating against marriage by same-sex couples.
EJS is relieved the Court protected couples who married before November 5. The presence of thousands of married same-sex couples across California will show that marriage strengthens families and communities and threatens no one.
But by upholding Prop 8, the Court has diminished its legacy as a champion of equality. No minority group should have to defend its right to equality at the ballot. The Court’s decision jeopardizes every minority group in California.
As a racial justice organization, the Equal Justice Society opposes Prop. 8 – not only because it’s the right thing to do, but also because EJS strongly believes in working with others to ensure that the rights of all are expanded, rather than diminished, in our society.
We cannot just pigeonhole Prop. 8 as a ‘gay’ issue. By rolling back the fundamental rights of one group, the Supreme Court’s decision on Prop. 8 casts a threat that now looms over the civil rights of all.
Since the vote on Prop 8, there has been a tidal wave of momentum in favor of full equality. Five states now embrace marriage equality for same-sex couples, and several more are on the brink. We believe that California voters will reverse this injustice at the ballot. California has been a leader in standing up for equality, and it will be again.
Banning same-sex couples from marriage is unfair. Same-sex couples have the same hopes, dreams and concerns for their families as everyone else. They should be allowed the dignity, recognition, and responsibility that come with marriage, just like everyone else.
The fight is not over. Join our friends at the National Center for Lesbian Rights (led by EJS board member Kate Kendall) to receive updates on next steps in this battle for justice.
PROF. RON TAKAKI PASSES AWAY
Ronald Takaki, professor emeritus of ethnic studies at the University of California, Berkeley, and a preeminent scholar of U.S. race relations who taught the University of California’s first black history course, died at his home in Berkeley on Tuesday, May 26, at age 70. He had struggled for years with multiple sclerosis, an autoimmune condition that attacks the central nervous system.
During his more than 40 years at UC Berkeley, Takaki established the nation’s first ethnic studies Ph.D. program as well as UC Berkeley’s American Cultures requirement for graduation, and advised President Clinton in 1997 on his major speech on race.
“Ron Takaki elevated and popularized the study of America’s multiracial past and present like no other scholar, and in doing so had an indelible impact on a generation of students and researchers across the nation and world,” said Don Nakanishi, director of and professor at UCLA’s Asian American Studies Center and a longtime friend of Takaki’s.
Takaki’s 1989 book, “Strangers from a Different Shore: A History of Asian Americans,” was nominated for a Pulitzer Prize.
A descendent of Japanese field workers in Hawai’i, Takaki was acutely attuned to the inequities in Hawai’i’s tough and ethnically divided plantation system.
In 1966, he was hired to teach UCLA’s first black history course in the wake of the explosive Watts riots. “I can still remember the smoke rising from Los Angeles and the sound of gunfire – it was a war zone,” he told the San Francisco Chronicle in that same interview.
When a student in the black history class asked him which revolutionary tools he could teach them, Takaki replied: “We’re going to study the history of the U.S. as it relates to African Americans. We’re going to strengthen our critical thinking skills and our writing skills. These can be revolutionary tools if we make them so.”
After five years at UCLA, Takaki returned in 1971 to UC Berkeley as the Department of Ethnic Studies’ first full-time teacher. He became wildly popular, filling auditoriums with hundreds of students hungry for perspectives on the struggles of America’s minority groups, and went on to win the campus’s Distinguished Teaching Award in 1981.
Takaki is survived by his wife, Carol; his three children, Todd of El Cerrito, Calif., Troy of Los Angeles and Dana of Chester, Conn.; and several grandchildren.
Takaki has donated his research and published papers to the Ethnic Studies Library at UC Berkeley. His family asks that, in lieu of flowers, donations be made in Takaki’s name to the Asian Law Caucus in San Francisco. Plans for a campus memorial service are pending.
All of us at the Equal Justice Society mourn Prof. Takaki’s passing and we express our deepest condolences to Ron’s family and friends.
Join a Facebook page launched in tribute to Prof. Takaki.
AFJ Statement on President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court
The following is a statement from Nan Aron, president of Alliance for Justice, on the nomination of Sonia Sotomayor to the Supreme Court.
We are thrilled with this choice. Sonia Sotomayor will be a strong voice to uphold the Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, regardless of wealth, status, or popularity.
President Obama has nominated a highly qualified candidate with a compelling personal story and outstanding educational credentials. Furthermore, the president is making history by nominating the first Latina to the Supreme Court. Judge Sotomayor has more federal judicial experience than any justice nominated to the Supreme Court in the past 100 years.
Judges make a huge difference in our lives.
Courts protect our air and water, hold corporations accountable, ensure equal opportunity and fair pay, and safeguard our personal freedoms.
This nomination shows that President Obama is appointing judges who understand that the role of the courts is to give everyone a chance to be heard, to stand up for their rights, and get justice.
Obama Nominates Sotomayor for Supreme Court
President Barack Obama today nominated Judge Sonia Sotomayor to succeed David Souter as an associate justice of the Supreme Court. Obama said Sotomayor has more experience as a judge than any current member of the high court had when nominated, adding she has earned the “respect of colleagues on the bench, the admiration of many lawyers who argue cases in her court and the adoration of her clerks, who look to her as a mentor.”
She would be the first Latina to serve on the Supreme Court.
The following is a backgrounder issued by the White House:
Sonia Sotomayor has served as a judge on the United States Court of Appeals for the Second Circuit since October 1998. She has been hailed as “one of the ablest federal judges currently sitting” for her thoughtful opinions,i and as “a role model of aspiration, discipline, commitment, intellectual prowess and integrity”ii for her ascent to the federal bench from an upbringing in a South Bronx housing project.
Her American story and three decade career in nearly every aspect of the law provide Judge Sotomayor with unique qualifications to be the next Supreme Court Justice. She is a distinguished graduate of two of America’s leading universities. She has been a big-city prosecutor and a corporate litigator. Before she was promoted to the Second Circuit by President Clinton, she was appointed to the District Court for the Southern District of New York by President George H.W. Bush. She replaces Justice Souter as the only Justice with experience as a trial judge.
Judge Sotomayor served 11 years on the Court of Appeals for the Second Circuit, one of the most demanding circuits in the country, and has handed down decisions on a range of complex legal and constitutional issues. If confirmed, Sotomayor would bring more federal judicial experience to the Supreme Court than any justice in 100 years, and more overall judicial experience than anyone confirmed for the Court in the past 70 years. Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit, said “Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her.”
In addition to her distinguished judicial service, Judge Sotomayor is a Lecturer at Columbia University Law School and was also an adjunct professor at New York University Law School until 2007.
An American Story
Judge Sonia Sotomayor has lived the American dream. Born to a Puerto Rican family, she grew up in a public housing project in the South Bronx. Her parents moved to New York during World War II – her mother served in the Women’s Auxiliary Corps during the war. Her father, a factory worker with a third-grade education, died when Sotomayor was nine years old. Her mother, a nurse, then raised Sotomayor and her younger brother, Juan, now a physician in Syracuse. After her father’s death, Sotomayor turned to books for solace, and it was her new found love of Nancy Drew that inspired a love of reading and learning, a path that ultimately led her to the law.
Most importantly, at an early age, her mother instilled in Sotomayor and her brother a belief in the power of education. Driven by an indefatigable work ethic, and rising to the challenge of managing a diagnosis of juvenile diabetes, Sotomayor excelled in school. Sotomayor graduated as valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York. She first heard about the Ivy League from her high school debate coach, Ken Moy, who attended Princeton University, and she soon followed in his footsteps after winning a scholarship.
At Princeton, she continued to excel, graduating summa cum laude, and Phi Beta Kappa. She was a co-recipient of the M. Taylor Pyne Prize, the highest honor Princeton awards to an undergraduate. At Yale Law School, Judge Sotomayor served as an editor of the Yale Law Journal and as managing editor of the Yale Studies in World Public Order. One of Sotomayor’s former Yale Law School classmates, Robert Klonoff (now Dean of Lewis & Clark Law School), remembers her intellectual toughness from law school: “She would stand up for herself and not be intimidated by anyone.” [Washington Post, 5/7/09]
A Champion of the Law
Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system – yielding a depth of experience and a breadth of perspectives that will be invaluable – and is currently not represented — on our highest court. New York City District Attorney Morgenthau recently praised Sotomayor as an “able champion of the law” who would be “highly qualified for any position in which wisdom, intelligence, collegiality and good character could be assets.” [Wall Street Journal, 5/9/09]
A Fearless and Effective Prosecutor
Fresh out of Yale Law School, Judge Sotomayor became an Assistant District Attorney in Manhattan in 1979, where she tried dozens of criminal cases over five years. Spending nearly every day in the court room, her prosecutorial work typically involved “street crimes,” such as murders and robberies, as well as child abuse, police misconduct, and fraud cases. Robert Morgenthau, the person who hired Judge Sotomayor, has described her as a “fearless and effective prosecutor.” [Wall Street Journal, 5/9/09] She was cocounsel in the “Tarzan Murderer” case, which convicted a murderer to 67 and ½ years to life in prison, and was sole counsel in a multiple-defendant case involving a Manhattan housing project shooting between rival family groups.
A Corporate Litigator
She entered private practice in 1984, becoming a partner in 1988 at the firm Pavia and Harcourt. She was a general civil litigator involved in all facets of commercial work including, real estate, employment, banking, contracts, and agency law. In addition, her practice had a significant concentration in intellectual property law, including trademark, copyright and unfair competition issues. Her typical clients were significant corporations doing international business. The managing partner who hired her, George Pavia, remembers being instantly impressed with the young Sonia Sotomayor when he hired her in 1984, noting that “she was just ideal for us in terms of her background and training.” [Washington Post, May 7, 2009]
A Sharp and Fearless Trial Judge
Her judicial service began in October 1992 with her appointment to the United States District Court for the Southern District of New York by President George H.W. Bush. Still in her 30s, she was the youngest member of the court. From 1992 to 1998, she presided over roughly 450 cases. As a trial judge, she earned a reputation as a sharp and fearless jurist who does not let powerful interests bully her into departing from the rule of law. In 1995, for example, she issued an injunction against Major League Baseball owners, effectively ending a baseball strike that had become the longest work stoppage in professional sports history and had caused the cancellation of the World Series the previous fall. She was widely lauded for saving baseball. Claude Lewis of the Philadelphia Inquirer wrote that by saving the season, Judge Sotomayor joined “the ranks of Joe DiMaggio, Willie Mays, Jackie Robinson and Ted Williams.”
A Tough, Fair and Thoughtful Jurist
President Clinton appointed Judge Sotomayor to the U.S. Court of Appeals for the Second Circuit in 1998. She is the first Latina to serve on that court, and has participated in over 3000 panel decisions, authoring roughly 400 published opinions. Sitting on the Second Circuit, Judge Sotomayor has tackled a range of questions: from difficult issues of constitutional law, to complex procedural matters, to lawsuits involving complicated business organizations. In this context, Sotomayor is widely admired as a judge with a sophisticated grasp of legal doctrine. “’She appreciates the complexity of issues,’ said Stephen L. Carter, a Yale professor who teaches some of her opinions in his classes. Confronted with a tough case, Carter said, ‘she doesn’t leap at its throat but reasons to get to the bottom of issues.’” For example, in United States v. Quattrone, Judge Sotomayor concluded that the trial judge had erred by forbidding the release of jurors’ names to the press, concluding after carefully weighing the competing concerns that the trial judge’s concerns for a speedy and orderly trial must give way to the constitutional freedoms of speech and the press.
Sotomayor also has keen awareness of the law’s impact on everyday life. Active in oral arguments, she works tirelessly to probe both the factual details and the legal doctrines in the cases before her and to arrive at decisions that are faithful to both. She understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts. For example, In United States v. Reimer, Judge Sotomayor wrote an opinion revoking the US citizenship for a man charged with working for the Nazis in World War II Poland, guarding concentration camps and helping empty the Jewish ghettos. And in Lin v. Gonzales and a series of similar cases, she ordered renewed consideration of the asylum claims of Chinese women who experienced or were threatened with forced birth control, evincing in her opinions a keen awareness of those women’s plights.
Judge Sotomayor’s appreciation of the real-world implications of judicial rulings is paralleled by her sensible practicality in evaluating the actions of law enforcement officers. For example, in United States v. Falso, the defendant was convicted of possessing child pornography after FBI agents searched his home with a warrant. The warrant should not have been issued, but the agents did not know that, and Judge Sotomayor wrote for the court that the officers’ good faith justified using the evidence they found. Similarly in United States v. Santa, Judge Sotomayor ruled that when police search a suspect based on a mistaken belief that there is a valid arrest warrant out on him, evidence found during the search should not be suppressed. Ten years later, in Herring v. United States, the Supreme Court reached the same conclusion. In her 1997 confirmation hearing, Sotomayor spoke of her judicial philosophy, saying” I don’t believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.” Her record on the Second Circuit holds true to that statement. For example, in Hankins v. Lyght, she argued in dissent that the federal government risks “an unconstitutional trespass” if it attempts to dictate to religious organizations who they can or cannot hire or dismiss as spiritual leaders. Since joining the Second Circuit, Sotomayor has honored the Constitution, the rule of law, and justice, often forging consensus and winning conservative colleagues to her point of view.
A Commitment to Community
Judge Sotomayor is deeply committed to her family, to her co-workers, and to her community. Judge Sotomayor is a doting aunt to her brother Juan’s three children and an attentive godmother to five more. She still speaks to her mother, who now lives in Florida, every day. At the courthouse, Judge Sotomayor helped found the collegiality committee to foster stronger personal relationships among members of the court. Seizing an opportunity to lead others on the path to success, she recruited judges to join her in inviting young women to the courthouse on Take Your Daughter to Work Day, and mentors young students from troubled neighborhoods Her favorite project, however, is the Development School for Youth program, which sponsors workshops for inner city high school students. Every semester, approximately 70 students attend 16 weekly workshops that are designed to teach them how to function in a work setting. The workshop leaders include investment bankers, corporate executives and Judge Sotomayor, who conducts a workshop on the law for 25 to 35 students. She uses as her vehicle the trial of Goldilocks and recruits six lawyers to help her. The students play various roles, including the parts of the prosecutor, the defense attorney, Goldilocks and the jurors, and in the process they get to experience openings, closings, direct and cross-examinations. In addition to the workshop experience, each student is offered a summer job by one of the corporate sponsors. The experience is rewarding for the lawyers and exciting for the students, commented Judge Sotomayor, as “it opens up possibilities that the students never dreamed of before.” [Federal Bar Council News, Sept./Oct./Nov. 2005, p.20] This is one of many ways that Judge Sotomayor gives back to her community and inspires young people to achieve their dreams.
She has served as a member of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts and was formerly on the Boards of Directors of the New York Mortgage Agency, the New York City Campaign Finance Board, and the Puerto Rican Legal Defense and Education Fund.
