[Congressional Record Volume 155, Number 100 (Tuesday, July 7, 2009)]
[Senate]
[Pages S7154-S7155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. McCONNELL. Mr. President, last week, the Supreme Court decided 
the case of Ricci v. DeStefano in which it ruled that the city of New 
Haven, CT, unlawfully discriminated against a number of mostly White 
firefighters by throwing out a standardized employment promotion test 
because some minority firefighters had not performed as well as they 
had.
  In this case, the Supreme Court was correct in my view. The 
government should not be allowed to discriminate intentionally on the 
basis of race on the grounds that a race-neutral, standardized test--
which is administered in a racially neutral fashion--results in some 
races not performing as well as others.
  Yet regardless of where one comes out on this question, there are at 
least two aspects of how all nine Justices handled this very important 
case that stand in stark contrast to how Judge Sotomayor and her panel 
on the Second Circuit handled it--and which call into question Judge 
Sotomayor's judgment.
  First, this case involves complex questions of Federal employment 
law; namely, the tension between the law's protection from intentional 
discrimination--known as ``disparate treatment'' discrimination--and 
the law's protection from less overt forms of discrimination, known as 
``disparate impact'' discrimination.
  It also involves important constitutional questions--such as whether 
the government, consistent with the 14th amendment's guarantee of equal 
protection under the law, may intentionally discriminate against some 
of its citizens in the name of avoiding possible discriminatory results 
against other of its citizens.
  Every court involved in this case realized that it involved complex 
questions that warranted thorough treatment--every court, that is, 
except for Judge Sotomayor's panel. The district court, which first 
took up the case, spent 48 pages wrestling with these issues. The 
Supreme Court devoted 93 pages to analyzing them. By contrast, Judge 
Sotomayor's panel dismissed the firefighters' claims in just 6 
sentences--a treatment that her colleague and fellow Clinton appointee, 
Jose Cabranes, called ``remarkable,'' ``perfunctory,'' and not worthy 
``of the weighty issues presented by'' the firefighters' appeal.
  It would be one thing if the Ricci case presented simple issues that 
were answered simply by applying clear precedent. But the Supreme Court 
doesn't take simple cases. And at any rate, no one buys that this case 
was squarely governed by precedent, not even Judge Sotomayor.
  We know this because in perfunctorily dismissing the firefighters'

[[Page S7155]]

claims, Judge Sotomayor did not even cite a precedent.
  Moreover, she herself joined an en banc opinion of the Second Circuit 
that said the issues in the case were ``difficult.'' So, to quote the 
National Journal's Stuart Taylor, the way Judge Sotomayor handled the 
important legal issues involved in this case was ``peculiar'' to say 
the least. And it makes one wonder why her treatment of these weighty 
issues differed so markedly from the way every other court has treated 
them and whether her legal judgment was unduly affected by her personal 
or political beliefs.
  Second, all nine Justices on the Supreme Court said that Judge 
Sotomayor got the law wrong. She ruled that the government can 
intentionally discriminate against one group on the basis of race if it 
dislikes the outcome of a race-neutral exam and claims that another 
group may sue it. Or, as Judge Cabranes put it, under her approach, 
employers can ``reject the results of an employment examination 
whenever those results failed to yield a desired racial outcome, i.e., 
failed to satisfy a racial quota.''
  No one on the Supreme Court, not even the dissenters, thought that 
was a correct reading of the law.
  Justice Kennedy's majority opinion said that before it can 
intentionally discriminate on the basis of race in an employment 
matter, the government must have a ``strong basis in evidence'' that it 
could lose a lawsuit by a disgruntled party claiming a discriminatory 
effect of an employment decision. And even Justice Ginsburg and the 
dissenters said that before it intentionally discriminates, the 
government must have at least ``good cause'' to believe that it could 
lose a lawsuit by the disgruntled party.
  Not Judge Sotomayor. She evidently believes that statistics alone 
allow the government to intentionally discriminate against one group in 
favor of another if it claims to fear a lawsuit.
  Stuart Taylor notes why this is problematic. As he put it, the 
Sotomayor approach would, ``risk converting'' Federal 
antidiscrimination ``law into an engine of overt discrimination against 
high-scoring groups across the country and allow racial politics and 
racial quotas to masquerade as voluntary compliance with the law.'' 
Under such a regime, Taylor notes, ``no employer could ever safely 
proceed with promotions based on any test on which minorities fared 
badly.''
  It is one thing to get the law wrong, but Judge Sotomayor got the law 
really wrong in the Ricci case, and the New Haven firefighters suffered 
for it. To add insult to injury, the perfunctory way in which she 
treated their case indicates either that she did not really care about 
their claims, or that she let her own experiences planning and 
overseeing these types of lawsuits with the Puerto Rican Legal Defense 
and Education Fund affect her judgment in this case.
  As has been reported, before she was on the bench, Judge Sotomayor 
was in leadership positions with PRLDEF for over a decade. While there, 
she monitored the group's lawsuits and was described as an ``ardent 
supporter'' of its litigation projects, one of the most important of 
which was a plan to sue cities based on their use of civil service 
exams. In fact, she has been credited with helping develop the group's 
policy of challenging these types of standardized tests.
  Is the way Judge Sotomayor treated the firefighters' claims in the 
Ricci case what President Obama means when he says he wants judges who 
can ``empathize'' with certain groups? Is this why Judge Sotomayor 
herself said she doubted that judges can be impartial, ``even in most 
cases''? It is a troubling philosophy for any judge, let alone one 
nominated to our highest court, to convert ``empathy'' into favoritism 
for particular groups.
  The Ricci decision is the tenth of Judge Sotomayor's cases that the 
Supreme Court has reviewed. And it is the ninth time out of ten that 
the Supreme Court has disagreed with her. In fact, she is 0 for 3 
during the Supreme Court's last term.
  The President says that only 5 percent of cases that Federal judges 
decide really matter. I do not know if he is right. But I do know that, 
by necessity, the Supreme Court only takes a small number of cases, and 
it only takes cases that matter. And I know that in the Supreme Court, 
Judge Sotomayor's been wrong 90 percent of the time.
  In the Ricci case, her third and final reversal of this term, Judge 
Sotomayor was so wrong in interpreting the law that all nine justices, 
of all ideological stripes, disagreed with her. As we consider her 
nomination to the Supreme Court, my colleagues should ask themselves 
this important question: is she allowing her personal or political 
agenda to cloud her judgment and favor one group of individuals over 
another, irrespective of what the law says?

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