Wednesday, June 3, 2009 5:15 PM
Will Sotomayor Have To Talk About Ricci?
(Credit: Alex Wong/Getty Images)
Updated at 9:42 a.m. on June 4.
The unanimous, unsigned, one-paragraph opinion affirming a lower court's ruling in Ricci v. DeStefano may be the closest thing to an Achilles heel in Sonia Sotomayor's 17-year appellate bench career. While interest groups, legal experts and politicians will spend the coming weeks disputing the case's significance, it will undoubtedly loom large in the lead-up to her confirmation hearings.
So will Sotomayor explain her reasoning during the confirmation hearings or in her ongoing meetings with senators? Is she compelled to? Does she have a judicial ethical obligation not to? That's all up for deliberation, according to the White House and legal experts across the political spectrum.
In Ricci, Sotomayor joined a 2nd Circuit panel opinion supporting New Haven's decision to discard the results of a firefighter promotion exam because no black applicants qualified. The suit was brought by several white firefighters and one Hispanic firefighter who said they were discriminated against when the city passed them over for promotion.
For its critics, the Ricci decision triggers concerns about affirmative action and racial discrimination. And while it isn't uncommon for a busy appellate circuit to issue one-paragraph opinions, the one in this case leaves some court-watchers wanting more explanation, given the controversial issues at stake.
In a background briefing immediately following President Obama's nomination of Sotomayor on May 26, the White House signaled that she will not have to explain her reasoning about Ricci -- at least not as long as the case is still pending before the Supreme Court, which is expected to hand down its decision toward the end of the month.
The White House remained vague on just how Sotomayor might explain her decision even after the Supreme Court has ruled. When a reporter asked one of the senior administration officials at the briefing whether they had questioned her about Ricci, he replied that they "were very careful not to ask her about her ruling in that case.... Depending on what the court does, it could wind up back in front of her again, depending on whether or not she's confirmed and -- a lot of 'dependings.' But the bottom line is that's a case that she is a sitting judge on."
Lisa Graves, who served as chief nominations counsel for top Judiciary Committee Democrat Patrick Leahy during the first term of the Bush administration, emphasized that the Code of Conduct for U.S. judges bars nominees from talking about any case they've ruled on that is pending before any court. Judicial candidates also can't speculate on how they would rule in future cases.
Tom Goldstein, Supreme Court litigator at Akin Gump and founder of SCOTUSblog, said there are two likely scenarios for the high court's ruling on Ricci: an outright reversal, or a narrower win remanding the case to either the appellate or district court for further study of the claim. In the former scenario, there's more leeway for Sotomayor to talk about the case, but she still walks a fine line. In the latter scenario, since the case would still be very much "alive," Goldstein said, she would not be able to talk about it.
The nominee's conversations with lawmakers and the White House, however, are fair game for senators to ask about at the hearings. That, suggested Rachel Brand, who worked on the nominations of John Roberts and Samuel Alito in George W. Bush's Justice Department, is why the White House did not probe her on the case. Goldstein echoed that thought: "If the administration asks about Ricci, it's perfectly fair for senators to ask her about Ricci, and they don't want to put her in that box."
But others who have been involved in past confirmations say that, regardless of the White House's precautions, it's unlikely Sotomayor will be able to avoid questioning about the case. Eleanor "Eldie" Acheson, who worked on the nominations of Ruth Bader Ginsburg and Stephen Breyer in the Clinton Justice Department, called the White House's reasoning for not asking Sotomayor about Ricci a "huge reach."
"They can be very careful at the White House, and more power to them for being concerned about those kinds of things," said Acheson. "That's not going to deter senators from asking about it."
"They're going to be talking to her about how to answer questions about Ricci," she added. "There is no way they can ignore that."
Graves said nominees typically respond to such questions by reiterating how they issued the decision at hand without departing from what is already stated in the written opinion. Brand pointed out that while Sotomayor may avoid answering questions about Ricci, she can answer "general questions about how she approaches 14th Amendment cases."
Sotomayor's "wise Latina woman" comments are also fair game, Goldstein said. "I do think she is going to face pointed questions about race. The ones she answers aren't likely going to be about Ricci itself," he said.
Ultimately, it's the responsibility of the nominee -- not the White House -- to make the final call. "Every nominee comes to their own conclusions about what questions they can answer," Brand said.
The Wall Street Journal's Washington Wire blog has audio of Sotomayor in the 2nd Circuit panel's discussion of Ricci.


Gekkobear
Thursday, June 4, 2009
Why woould she have to explain it?
Just repeat that a wise Latina woman is smarter than a white man, and ignore all the white men asking her questions. Based solely on her gender and race she feels she is smarter than most senators; so why bother answering?
Do you explain yourself to your intellectual inferiors? So why would she?
Chillingsworth
Monday, June 8, 2009
Judge Sotomayor graduated from Princeton University. Her "rich" undergraduate experience was jam packed with squash, rowing white male legacy 'foundation scholars'. Had she attended Cal Tech or MIT I assure you her assessment of elite white male scholarship would have been very different- To those who understand the Ivies the doors were best left blocked to keep the secrets in. Imagine how shocking for her to witness first hand the Eating Club vomitorium networking system after settling into that beautifully landscaped campus. Myths shattered. I am shocked though that she was unable to make a distinction between the white males at Princeton and the white males at say Cal Tech or MIT. Honestly there are white males out there who are indeed brilliant, hard working and contribute to the world without the aid of alcohol and mummys stipend. She should look beyond Princeton when judging the white male.