Supreme Court Justice David Souter Retiring in June

Well, Souter did join the Casey per curium, so maybe they can get a guy who would have joined the much better Brennan concurring opinion. It would have made my recent Con. Law final so much easier too--no more wackadoo standards for unenumerated rights.

At face value, Sotomayor seems like a fairly decent candidate with a pretty decent resume...and her political value as a female & the first hispanic justice is immeasurable for the Dems.

However...I just can't back her. Her position in the Ricci v. DeStefano case is indefensible in my opinion.

additional source

Admittedly...it's hard to pinpoint exactly WHAT her position was because she joined in an unsigned opinion...but my trepidation continues.

I'm sure she'll eventually get confirmed, barring some crazy skeleton in her closet. However...I don't think a stinky, rotten fish like the Ricci case decision should go unmentioned...because people will be patting themselves on the back over Sotomayor's appointment. They'll be calling her a "hero", an "inspiration" and a "role model" because of her background. They'll do this despite the clear & blatant racism in the Ricci case...and her involvement with it.

Eh, I'm not sure I can follow you there: it's difficult to parse out the Second Circuit's opinion, but it seems that they're simply denying strict scrutiny applies in this case because it's neither a facial nor as-applied race-based distinction. They seem to be applying a rational review with bite analysis, which the background facts generally tends to support: the expert they discussed the matter with certified that there was racial bias in the test, the government has a legitemate interest in ensuring that it does not pick on the basis of racial bias, and less-intrusive alternatives were available.

While I'm somewhat sympathetic to the individuals involved and the fact that despite the fact that they earned the top three scores, they didn't get what they were promised (I say somewhat because I myself would want a do-over if I found out the test, however unbeknownst to me, was rigged in my favor), ensuring everyone gets what they deserve in accordance with the law is the responsibility of the trial court, not the appellate court. The appellate court's job is to make sure that the trial court correctly applied applicable law. I'm not sure where you can fault Sotomayer for finding narrowly on such a manner in a way that happens to disadvantage sympathetic plaintiffs.

I don't want to get too far off topic...especially since there is an existing thread about this specific case...but it all seems like a bunch of legalese...hiding the simplest, and basic facts of the case: 1.) The guys who scored highest, and were eligible for the promotions were a group of white guys & one hispanic. 2.) The City of New Haven feared a lawsuit from the Black firefighters. 3.) The City of New Haven threw out the test.

I don't see where the witness was an "expert"...only a representative of the company developing the exam. This same witness stated, according to the article, that the "adverse impact" was anything greater than allowed by law. The testimony of the experienced firefighters...that this exam was comparable to past exams...was seemingly ignored...

You're right, that was a bunch of legalese. My bad; law school does that to a person. The basic point though is that while everything you say is true, and I did somewhat overstate the reasonableness of New Haven's case, that's an issue at the trial level, not the appellate level. Contrary to what you may expect, you can't appeal solely on the basis that "this case reached the wrong outcome"; you can only appeal if you can say "based on pure matter of law x, incorrectly applied at trial level, the case was wrongly decided", and it's the appellate court's job to determine the matter of law, not the decision itself. There's good reason for this: we don't want an appellate justice's judgment to override the finding of the jury just because he happens to disagree with that jury.

In this case, the matter of law was the applicable standard of review to be applied; essentially, that's the "how high a threshold does the government have to reach to say that what they did was legitimate" question. Now, while I am somewhat sympathetic to the plight of the plaintiffs, the legal argument that they use is, I think, on much shakier ground: essentially, they're arguing that any time a city thinks it's done something that, as-applied to the circumstances, comes out to be racially-biased, they have to meet the most stringent, compelling standard of review in order to actually overturn that decision. The defendant's, however, favor a standard of review whereby the overturning must be reasonable given the contingent circumstances. While I am sympathetic to the plaintiffs, as someone who is also sympathetic to righting ongoing racial wrongs, you can see why I think that's a bad bad dangerous general principle to apply to fudge the law in the plaintiffs' favor.

Hope that makes more sense.

Yes, it does. While I still don't agree with the City or the Appellate Court...I do see how they might have come to that decision more clearly now.

A case such as that is exactly why I support "judicial activism."

This is also worth noting, courtesy the absolutely superb SCOTUSblog, who actually, you know looked at her fucking record as opposed to just parroting the wingnuts on the right like most of the cable talking heads are doing.

Hey look! Republicans actually decided to do that dumb thing they were on the fence about:

Let's look at this mechanically and politically: a bunch of old white Republicans taking up the race issue again; whether it's right or wrong, that shit is sure to blow up in their faces. Congrats, you guys padded your warchest and held off the reactionaries... you also alienated the fastest growing voting demographic in the US.