There's been some great judges to sit on the Supreme Court. And before they were part of the Court, they were already "in the zone" so to speak. Meaning, they weren't just thinking about how a case is resolved under current law, but how it "should" be resolved. I'm not talking about "judicial activism" which implies a political or personal interference.
Part of the key to the great ones, or even just ones who are simply qualified, is an awareness. You can't tackle a problem if you aren't aware of it. You can't just look at both sides of an argument and assume that's all with which you can rely. Even worse, though, is choosing to be narrowminded.
Another part is being able to see the solution... which can be pretty difficult and may take some time after becoming aware of the problem. I think of one of the greats, Learned Hand. That's his name, and it fits because he's a fresh razor in a tool shed. A great that never got to sit on the Supreme Court, unfortunately.
Anyway, he had a case before him which basically required figuring out who was liable in a case of negligence. So, he came up with a formula for it. That formula wasn't already in the law books, or anything else. He saw the need and came up with the answer. That formula was was like "OMG!" in the legal community, a pretty big deal. Anyway, the guy is like the epitome of this sort of situation, many many important opinions from him, he was a source of enlightenment to many.
Another was a guy named Cordozo. He eventually got the Supreme Court, but wasn't there very long because he died. But like Learned Hand, he recognized problems and found solutions. As part of the Supreme Court... it's expected.
Now, let's look at what Sontomayor has to offer. In this very recently released opinion (today!), linked above, we have a case where a city decided not to promote any firemen to Lt. or Cpt. because only whites and two hispanics would have been eligible. The City thought the test showed a "disparate impact" and that they would be liable if they certified the scores. So, because nothing but white people and 2 hispanics would have been chosen, they decided to not promote anyone. Oh yeah, that's called intentional discrimination. Yeah, they decided to intentionally discriminate to avoid potential disparate impact liability.
So, the city got sued by the 17 whites and 1 hispanic, all of whom passed and were denied promotion because of the discrimination. The District Court pretty much said stfu and ruled in favor of the City after cross motions for summary judgment. Even more shocking, the appellate court on which Sotomayor is a part of, heard the case and gave a very short, one paragraph ruling, adopting the District Courts reasoning... which was: “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.” WTF?! That's taking a step back. How in hell was this acceptable to the appellate judges? I can just imagine as the SC was looking at what cases to grant cert, they must have seen this and were just dumbfounded on the basis alone, without even getting to whether they agree with its ultimate result.
So, here was a case where someone like Learned Hand or Cordozo, would have taken the reigns and issued a reasonable and logical decision by taking what they know in law, and applying it to the case at hand. But no. She stayed silent. I wonder why? (sarcasm)
I'll tell you why. Because Title 7 let's people who are otherwise unqualified, get qualified. The supposed intention wasn't that, it was to give all people an equal chance based on the job, and not on race. Yet, the opposite is happening, has been happening, and won't stop until the law is either scrapped or re-written.
Don't we want the best and brightest? If anything, failing the test or not scoring high enough for promotion could have been caused by countless things. But it should have had the effect of, to a person really wanting to get promoted, motivating an individual to try harder, or be better prepared next time. That has nothing to with race either, it's a human thing.
The outcome of the case is that from now on, if you're going to discriminate to avoid disparate impact liability, you had better have a pretty freekin good basis (strong basis) to think you'd be liable. In this particular case, the city had a very weak basis, so they finally lost.
But anyway, Sotomayer dropped the ball on this case completely. She was part of the appellate court that decided to side with the lower court. I won't buy some excuse like, too many cases or whatever, the SC goes through tons of cases just to decide which ones they'll hear. And then they hear them and throw out opinions. So, if she hasn't learned the job by now, then let's get on with seeing the next nominee.
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