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Tilting at Windmills

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June 29, 2009

IT WAS A 5-4 SPLIT.... Everyone knew the Ricci ruling would come down today. It was the last day of the session, and the Supreme Court hadn't issued its decision yet. By mid-day Friday, we knew the ruling would be released early Monday.

And that, in turn, gave the various players plenty of time to come up with their carefully crafted over-the-top responses. I'm afraid some of the leading conservative activists didn't use the time wisely.

Wendy Long, head of the Judicial Confirmation Network, which apparently exists for no other reason than to attack Democratic judicial nominees, quickly issued a statement this morning with the headline: "Not Even One Justice Approved Sotomayer In Ricci Case." Yes, even now, Wendy Long can't spell "Sotomayor." The press statement went on to say:

"Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error."

Soon after, on a Federalist Society conference call with reporters, additional conservative activists emphasized a similar line.

Roger Clegg of the Center for Equal Opportunity suggested that the ruling "gives the Senate Judiciary Committee a lot to ask about" and that it brings to light her past statements on this issue.

He was joined by Gail Heriot, a professor at the University of San Diego School of Law in the insistence that each of the nine Justices had rejected Sotomayor's reasoning in her Second Circuit decision.

There's a variety of problems with all of this, but the most obvious is the fact that the Ricci ruling was 5 to 4, not 9 to 0. Even if Wendy Long & Co. hoped to exploit the ruling to attack Sotomayor -- itself a dubious proposition -- they should have at least checked to see that there was a dissent, endorsed by four justices.

Raise your hand if you think Long, Clegg, or Heriot actually read all 93 pages of the ruling before sharing their analysis of the decision with reporters.

And, again, it should be clear by now, but the fact that a narrow Supreme Court majority reached a different conclusion on this case than Sotomayor is not a "rebuke" of the high court nominee. Repeating the line over and over won't make it true.

Update: Rush Limbaugh also insisted that Ricci was "a nine-zip decision." Is the right so far gone that they can no longer count to four? If someone can explain to me, I'm all ears.

Second Update: Ah, now I see. Brian Beutler explains that the 10th footnote in Justice Ruth Bader Ginsburg's dissenting opinion takes issue with a procedural matter from the appeals court. So, for these conservative activists, even the justices who agreed with Sotomayor necessarily disagreed with her, too. It doesn't quite explain Rush calling it "nine-zip," but that's probably the rationale for Long, et al.

Steve Benen 1:10 PM Permalink | Trackbacks | Comments (54)

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Comments

all these sotomayor kvetchers are is dust in the wind...

read mencimer over at MoJo...

aint nobody gonna make mama mad... they dont wanna pay for it in court later...

Posted by: neill on June 29, 2009 at 1:13 PM | PERMALINK

Repeating the line over and over won't make it true.

But repeating it over and over may very well make it stick in the public mind. Because the right wing doesn't care about truth; it only cares about implanting its views into the public consciousness.

Posted by: Lifelong Dem on June 29, 2009 at 1:15 PM | PERMALINK

The explanation: she lost 9-0, that's the explanation.

Posted by: gussie on June 29, 2009 at 1:16 PM | PERMALINK

Considering the "math" of the Bush II years (wars fought "for free"; Social Security replaced by private accounts because it is headed for insolvency under conditions that will save it), I'm not surprised that even basic integers escape these stooges.

Posted by: Bernard Gilroy on June 29, 2009 at 1:16 PM | PERMALINK

Gussie math: 9-4=9.

I'm doing my checkbook that way from now on.

Posted by: Davis X. Machina on June 29, 2009 at 1:19 PM | PERMALINK

Davis X: Try that, and one day you might find yourself pulling down $2 million bonus!

Posted by: gussie on June 29, 2009 at 1:21 PM | PERMALINK

I'm curious about this as well.. I mean, did even the dissent come to a slightly different conclusion, or something? My expectations are low but I still don't expect them to make up numbers. Maybe they're claiming even the dissent was patently different than Sotomayor's ruling?

Posted by: Chris on June 29, 2009 at 1:21 PM | PERMALINK

The RATS on the Supreme Court got a twofer with this case: they stood up for the 'oppressed' white man and launched an attack against Sotomayor.

It's a racist's wet dream.

Posted by: doubtful on June 29, 2009 at 1:22 PM | PERMALINK

gail heriot's explanation for 9-0 appears here -->
http://rightcoast.typepad.com/rightcoast/2009/06/ginburgs-footnote-10-in-ricci-gail-heriot.html

Posted by: nehemiah on June 29, 2009 at 1:23 PM | PERMALINK

I'm honestly worried about the fabric of the space-time continuum if these people continue to spin their own reality in this manner. I hate to seem like a coward in the game of existential chicken, but I think it might be best for us to bow to their craziness and start pretending that their reality exists within our own. Not because they're right, but just so we can have a physical universe to give to our children and grand-children. Either that or we start putting horse tranquilizers in their coffee and seeing if that calms them down enough for them to re-join our reality. At this point, I'm willing to try anything.

Posted by: Doctor Biobrain on June 29, 2009 at 1:30 PM | PERMALINK

This strategy of lying is quite effective (see all the Republicans that Fox lists as Democrats). People tend to believe the first story they hear especially if it confirms their current view. They wont change their minds even when confronted with overwhelming evidence to the contrary. In fact, since conservatives think they are being oppressed, if you present them evidence to refute their claims, it makes them believe their false narrative even more.

I had a conservative co-worker who continues to claim that Valerie Plame worked in the CIA cafeteria (or some other misogynistic BS; I can no longer keep track) despite the fact that we showed him the letter from the DNI and the one from the head of the CIA indicating her status. Since then, us "libtards" are clearly brainwashed and he's oppressed by the black man.

Posted by: Chief Angry Cloud on June 29, 2009 at 1:30 PM | PERMALINK
This strategy of lying is quite effective

But only with the wingnut base, which is beyond help anyway.

Posted by: Steve LaBonne on June 29, 2009 at 1:32 PM | PERMALINK

Sure they can count ... but the actual truth is irrelevant.

What they are doing is establishing is a political narrative that depends on ideology first and political usefulness second(and in which making up your own "facts" is a critical part). So actual facts are just there to be enhaned, if not reinvented or re-imagined wholesale. Which Limbaugh and company prove on a daily basis.

Posted by: Bokonon on June 29, 2009 at 1:34 PM | PERMALINK

Chief Angry Cloud said: "People tend to believe the first story they hear especially if it confirms their current view.".

Put another way: it's true what they say about first impressions.

Posted by: PowerOfX on June 29, 2009 at 1:36 PM | PERMALINK

Um, apparently the 9-0 refers to SCOTUS' unanimously dim view of the Second Circuit's unannounced summary judgement, in a case that clearly was not open-and-shut.

Posted by: Matt on June 29, 2009 at 1:37 PM | PERMALINK

I don't see the phrases "Justice GINSBURG concurring:" or "Justice GINSBURG concurring in part and dissenting in part:" anywhere.

Am I missing something?

Posted by: Davis X. Machina on June 29, 2009 at 1:39 PM | PERMALINK

Media Matters has an important piece reminding us that Alito was rebuked four times while sitting on the 3rd Circuit Court of Appeals.

Rather than make the debate about whether she was reversed by 9 judges or 5 judges, we should realize that it DOESN'T matter as the premise is flawed.

http://mediamatters.org/research/200906290013

Posted by: JWK on June 29, 2009 at 1:43 PM | PERMALINK

Am I missing something? - Davis X Machina

Yeah, look at the link by nehemiah at 1:23. Ginsburg writes that Sotomayor's court should have allowed the case to go to court and let a jury decide, as opposed to being summarily dismissed, which is the same as being decided without trial in favor of the city.

My question is, does the SCOTUS ruling now send it back to court, or did they simply decide that the test had to be used as the litmus test?

Posted by: Danp on June 29, 2009 at 1:46 PM | PERMALINK

They're misreading footnote 10. Ginsburg's dissent is saying: the majority is wrong, and New Haven's decision to throw out the test should be upheld. The majority, she says, adopts a new standard, one that she disagrees with. But even if the majority were correct to adopt that standard, the correct course would not be to foreclose any further litigation and announce that New Haven can't satisfy this new standard--it would be to remand for further consideration under the new standard.

Posted by: Thrax on June 29, 2009 at 1:46 PM | PERMALINK

Wise Latina Woman's decision reversed for approving racial discrimination against white males. Liberals everywhere now favor discrimination. It's time to get even. So much for liberal committment to equality.

Posted by: mhr on June 29, 2009 at 1:47 PM | PERMALINK

Said unanimous SCOTUS dim view of case disposal will now have a prominent place at her hearing.

This is no longer so much law as politics.

Posted by: Matt on June 29, 2009 at 1:47 PM | PERMALINK

FYI -- The NY Times is complicit in misleading the public on this decision with their headline and lead sentence:

Justices Rule for White Firefighters in Bias Case
By DAVID STOUT 39 minutes ago

In a case with implications for workplaces across the U.S., the Supreme Court ruled that New Haven’s decision to scrap the results of a promotional exam resulted in discrimination.

Posted by: eric on June 29, 2009 at 1:50 PM | PERMALINK

"There's a variety of problems with all of this, but the most obvious is the fact that the Ricci ruling was 5 to 4, not 9 to 0. Even if Wendy Long & Co. hoped to exploit the ruling to attack Sotomayor -- itself a dubious proposition -- they should have at least checked to see that there was a dissent, endorsed by four justices."

So tell us, did the four dissenters rule that Sotomayor was legally correct when she affirmed the grant of summary judgment by the district court in this case? After all, this was the only legal question before the Sotomayor when the case was before her.

And the answer is no. Justice Ginsberg wrote that Sotomayor and the other judges applied the wrong standard: “The lower courts focused on [New Haven’s] ‘intent’ rather than on whether [New Haven] in fact had good cause to act.”

So while the Court did split 5-4 on the outcome, all of them agreed that Sotomayor's affirming of the grant of summary judgment by the district court was incorrect as a matter of law.

Posted by: Chicounsel on June 29, 2009 at 1:52 PM | PERMALINK

Keep in mind, this isn't the first time the rigties have pulled this "I read the vote on a sub-clause as the overall result". Any hardcore wingnut will tell you Bush v. Gore was a 7-2 outcome, because two justices were with the majority on a non-definitive part of the decision.

Republicans mislead. Stop the presses.

Posted by: demtom on June 29, 2009 at 1:57 PM | PERMALINK

Chicounsel - Obviously summary judgment was NOT the only issue before Sotomayor, or the SCOTUS would have ruled 9-0. In fact, if you read that 10th footnote, Ginsburg states that following the footnote, she explains why the SCOTUS should have upheld the lower court's decision.

Posted by: Danp on June 29, 2009 at 1:59 PM | PERMALINK

Is anyone else wondering what the judgment would have been if only black people had passed the test?

Posted by: doubtful on June 29, 2009 at 2:03 PM | PERMALINK

So tell us, did the four dissenters rule that Sotomayor was legally correct when she affirmed the grant of summary judgment by the district court in this case? After all, this was the only legal question before the Sotomayor when the case was before her.

I didn't realize that Sotomayor made the unilateral decision to reaffirm the grant of summary judgment. You'd think that someone would have mentioned that she'd been outvoted on that by the other two judges on the panel if she was the only one who made that decision.

Or did she somehow use that Mexican chick voodoo of hers to hypnotize the other judges into going along with her, so clearly it was All Her Fault even if they voted the same way she did? Inquiring minds would like to know.

Posted by: Mnemosyne on June 29, 2009 at 2:03 PM | PERMALINK

It really is funny how conservatives continue to focus on the outcome of this case, and not on the underlying laws that Sotomayor supposedly activated against. Because that's all they care about. They don't care how the decision was reached or what the underlying law said. They just care that whites were discriminated against (which confirms their feelings of victimhood on why life isn't working out better for them), as well as that it was a "rebuke" of Sotomayor. Anything else is a side issue for them.

But in no way can anyone seriously claim judicial activism was involved in this case. It's merely accepted as being self-evident: Because she's a liberal, she must be a liberal activist. For conservatives, it's such a redundant phrase that I'm not even sure why they bother using it. Liberal = Activist, even if they can't explain which law she was overturning.

Posted by: Doctor Biobrain on June 29, 2009 at 2:26 PM | PERMALINK

Gregg v. Duke Power (a thirty year old case and the the controlling? case law):

"... practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to freeze the status quo of prior discriminatory employment practices."

The Circuit Court has to apply precedent to the issue and I think that Duke Power is the decision they may have used (I have not read the decision.) I suggest that Ricci was decided on the basis of the what was already law and not liberal activism.

The old law may be flawed, silly, stupid, or bad (or good), but the circuit court cannot make policy or law the way that SCOTUS can. So a 5-4 decision is a good reflection of the merits of this case. It is a close run thing as to whether or not discrimination took place. New Haven was going to get sued no matter what happened.

No matter how you fell on this one, it is a mess and will remain so until the law is written better.

Posted by: mikeyes on June 29, 2009 at 2:40 PM | PERMALINK

In regards to the supreme court ruling against the lower court. Alito and Roberts and political interference in decision making ride again.

Posted by: MLJohnston on June 29, 2009 at 2:43 PM | PERMALINK

actually, i'm not so sure the law was that badly written. Griggs v Duke Pwr was a 1971 case, so for the past 38 years the distinctly different concepts of disparate treatment and disparate impact managed to live together in reasonable harmony. it is likely a sign of progress in combating discrimination that they are now seen as potentially being in tension, that there is an example that puts them at odds where the plaintiffs arguments are colorable and sympathetic. but on the face of things, if the law were as bad as people are making it sound today, and the concept as offensive in law and fact as Alito and Scalia made it sound today, one might have expected this problem to come to a head much more often than every 38 years.

Posted by: zeitgeist on June 29, 2009 at 2:47 PM | PERMALINK

Hey chicounsel--100% of Alito's opinions as a circuit court judge were overturned when they were appealed to the SCOTUS. I can only assume that you believe that he's not qualified to serve on the Supreme Court based on this fact, and I would agree with you!

Posted by: Allan Snyder on June 29, 2009 at 2:52 PM | PERMALINK

Keep in mind, this isn't the first time the rigties have pulled this "I read the vote on a sub-clause as the overall result". Any hardcore wingnut will tell you Bush v. Gore was a 7-2 outcome, because two justices were with the majority on a non-definitive part of the decision.

That was the first thing I thought of, possibly because as recently as last month I had to correct some wingnut who described Bush v. Gore as 7-2.

Posted by: Tom Hilton on June 29, 2009 at 3:00 PM | PERMALINK

Is the right so far gone that they can no longer count to four?

Seeing as how the right has been so unalterably opposed to education spending over the past 30 years, I suspect that many of them can't count to four.

-Z

Posted by: Zorro on June 29, 2009 at 3:06 PM | PERMALINK

Chicounsel, you blockhead, haven't you been embarrassed here enough times to learn that anything you read at NRO or hear from Rush is likely false, even if -- especially if! -- it confirms your own biases?

Jackass.

Posted by: Gregory on June 29, 2009 at 3:11 PM | PERMALINK

It must be cold in Hell, because I agree with the justices here. If a test is going to be used for promotions then unless that test is somehow unfair to minorities there's no reason to throw it out just because no minority scored well. We can discuss the merits of using a test to make promotions of actual work and leadership, but that's besides the point.

Posted by: Jimmy on June 29, 2009 at 3:32 PM | PERMALINK

Word is that as far as Rush is concerned the only 9 is his cigar and he hasn't seen his zip in over 20 yrs.

Posted by: Did that not post? on June 29, 2009 at 4:04 PM | PERMALINK

now now, there's no evidence any of these knuckle-dragging fools could ever count to four in the first place.

Posted by: onceler on June 29, 2009 at 4:27 PM | PERMALINK

What I haven't seen from anybody is an explanation or argument that the test was discriminatory or not sufficiently related to the job for which it was testing. No one has shown that the test was invalid for the purpose for which it was being used. It was for promoting people who would be supervising the fighting of fires, and the risk to lives that is involved. All we have heard is that the results were not to folks' liking.

Posted by: Dotar Sojat on June 29, 2009 at 4:44 PM | PERMALINK

Is the right so far gone that they can no longer count to four?

You mean there was a time when they could count to four?

Posted by: David Bailey on June 29, 2009 at 4:49 PM | PERMALINK

I'm all for Republicans trying to shoot down her appointment. I'd like to see someone more liberal on the court anyway.

Posted by: Gus on June 29, 2009 at 4:51 PM | PERMALINK

Wendy Long can't spell "Sotomayor."

Oh, yes she can. She just doesn't want to. She no doubt pronounces it "SOTO-myer."She believes a WASP like her should be able to anglicize a Latino name without Sotomayor's permission, because, well...just because. Gotta teach those brown people to talk like real Americans.

Posted by: Screamin' Demon on June 29, 2009 at 4:52 PM | PERMALINK

haha the illegal supreme nominee is going down! illegal kenyan trying to hire illegal mexican? not going to work! GO PALIN 2012!

Posted by: Jenn on June 29, 2009 at 5:32 PM | PERMALINK

I think the FCC should have some ability to sanction objectively false statements made about governmental actions such as SCOTUS rulings. Anyone?

tyrannogenius

Posted by: Neil B. ♪ on June 29, 2009 at 5:57 PM | PERMALINK

I have come to the conclusion that chicounsel got his law degree from a ten-cent gumball machine. He is too stupid to have twenty-five cents to his name.

Posted by: DJ on June 29, 2009 at 7:25 PM | PERMALINK

Giving special favors to minorities requires the utmost in sophistry and nuanced thinking to make it appear "fair," but of course it never will be. You cannot give special favors to some without discriminating against others.

Posted by: Luther on June 29, 2009 at 7:46 PM | PERMALINK

"Is anyone else wondering what the judgment would have been if only black people had passed the test?"

This gets very close to the question that most people in your camp don't want to be asking, doubtful:

Does anybody really imagine that New Haven's government would have thrown out the results of the test if only blacks had passed it?

I don't think they would have, and that makes a mockery of the city's defense that its hands were tied by disparate impact.

Posted by: smintheus on June 29, 2009 at 11:15 PM | PERMALINK

EXACTLY.

Posted by: Matt on June 30, 2009 at 12:42 AM | PERMALINK

After reading these comments it is obvious that some people don't mind making fools of themselves.

Posted by: Crawdad on June 30, 2009 at 5:10 AM | PERMALINK

All we have heard is that the results were not to folks' liking.

Sorry, but that statement simply isn't true. It isn't a question of whether the city would have preferred more equality in the results. The problems is that under the law, given the test's disproportionate results, the test is presumed biased, and the burden would be on the city to prove it isn't.

So the question isn't, "can anyone prove what's wrong with the test;" the question is, can you prove that it's fair. The city couldn't -- and if memory serves me right, they discovered that the test was in fact invalid for the purpose for which it was being used -- but you're welcome to try.

Presuming Dotar Sojat's comment was made in good faith, the fact that he / she still gets these basic facts wrong is a further indictments of our so-called "liberal media."

Posted by: Gregory on June 30, 2009 at 9:32 AM | PERMALINK

What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.

Posted by: Neo on June 30, 2009 at 11:02 AM | PERMALINK

neo is continuing proof that, particularly for those on the right, a little education can be a dangerous thing. skimming talking points at NRO about one case doesn't exactly make you a lawyer or a human resources expert. (1) you grossly oversimply Ginsburg's dissent which, at the end of the day, calls for the Court to affirm the 2d Circuit opinion; (2) it is neither Sotomayor's opinion nor "her" panel - she is one judge of 3; (3) her "holding" looking solely to the disproportionate impact on black test-takers mirrors precisely the "4/5ths" rule in federal law; (4) Supreme Court does this all the time, but those of you who pay attention for one opinion per year don't notice it: the various justicies generate theories to support or attack the lower court that are wholly separate from the rationales below. This is not news - and shouldn't be surprising given that only the Supreme Court has the power to draw on a clean slate if it so desires.

Really, to sound like you have a clue it helps to read enough Supreme Court opinions to know how the world really works.

Posted by: zeitgeist on June 30, 2009 at 11:18 AM | PERMALINK

I had seen some brief comment that the City said that they "discovered that the test was invalid", but no explanation of how or why it was invalid. This seems like an important point. Griggs was a neutral test but was a general test and not specifically related to the job. I haven't seen any such explanation of the Ricci test. My impression from the news is that it tested the technical and general knowledge required for the specific job, and that has not been refuted in any detail. I've tried to follow this in both conservative and liberal media; maybe I just missed it.

Posted by: Dotar Sojat on June 30, 2009 at 11:40 AM | PERMALINK

jQgRve

Posted by: Uzhsnmph on July 14, 2009 at 12:36 AM | PERMALINK




 

 

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