WH: Sotomayor reversal proves what a great judge she is

posted at 8:47 am on June 30, 2009 by Ed Morrissey

Give Robert Gibbs points for chutzpah, if not logic or consistency.  When the White House press corp peppered him with questions about the status of Sonia Sotomayor’s nomination after getting reversed on Ricci, Gibbs explained that the ruling proved that Sotomayor was — get ready — a judicial originalist.  Not only that, but it turns out that the administration had already rejected part of Sotomayor’s previous judgment on Ricci before the court reversed it:

The White House came to the defense of President Obama’s pick to be the newest Supreme Court justice after Judge Sonia Sotomayor’s ruling in a racially charged case was reversed by the Supreme Court.

White House press secretary Robert Gibbs all but accused the current court of “judicial activism,” a buzz term used by conservatives in recent years, in overturning what the White House saw as Sotomayor’s upholding of precedent. …

But Gibbs said that the case “denotes that [Sotomayor] is a follower of precedent,” and the arguments over judicial activism “seem to be at the very least upside-down in this case.”

Gibbs said the case proves “she doesn’t legislate from the bench.”

Not even the Supreme Court’s dissenters to Ricci would go that far.  As Stuart Taylor notes in his analysis of the dissent, none of the nine justices defended Sotomayor’s judgment or reasoning in Ricci [emphasis mine]:

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.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly — as did the Obama Justice Department, in a friend-of-the-court brief — that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city’s claimed motive — fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions — was a pretext. The jury’s job would have been to consider evidence that the city’s main motive had been to placate black political leaders who were part of Mayor John DeStefano’s political base.

Wait, wait, wait — the Obama administration filed a brief against Sotomayor’s judgment?  Their argument was that Sotomayor overreached in issuing a summary judgment, a point that won unanimous approval from the Supreme Court.  Isn’t that the definition of “judicial activism”?

Now the White House wants to pretend that Sotomayor is an originalist, when they themselves fought against her activist ruling.  That’s impressively Orwellian.


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