Green Room

Are The Justices Delaying The Ricci Decision?

posted at 5:20 pm on June 14, 2009 by

The Blog of Legal Times (BLT) is reporting that U.S. Supreme Court Justice Ruth Bader Ginsburg stated recently that she expected Sonia Sotomayor to be confirmed, and that Sotomayor would be a welcomed and qualified addition to the Court. BLT noted that such commentary by a seated Justice about a pending nomination was “unusual, but not unheard of,” citing one prior example (regarding the nomination of Robert Bork in 1987).

It is unseemly, to me, for a current Justice to inject herself into the political confirmation process, even if it is not unprecedented.

More interestingly, BLT notes that as to the controversial pending Supreme Court decision in Ricci v. DeStefano (an appeal from Sotomayor’s decision), Ginsburg stated “one can safely predict, [Ricci] will be among the last to come out before the term ends.”

It may be that Ricci will be one of the last decisions issued for entirely legitimate reasons, and Ginsburg merely was stating a fact which shows no motive. But Ginsburg’s endorsement of Sotomayor, combined with Ginsburg’s statements as to the timing of Ricci, creates the unfortunate appearance of one or more of the current Justices playing politics with the timing of the Ricci decision.

I have suspected that one of the reasons the Obama administration wants to rush the Sotomayor confirmation hearings through in mid-July is to avoid the serious political damage to Sotomayor’s confirmation of a reversal on Ricci. Ginsburg’s statements seem to support this wisdom, from the Obama administration’s point of view, since the Ricci decision appears to be headed for release after mid-July.

Ginsburg’s statements should give everyone pause as to the timing of the confirmation hearings. The possibility of a reversal on Ricci being held back (whether intentionally or not) until after the confirmation hearings argues for a September confirmation schedule.

Cross-posted with updates at Legal Insurrection Blog

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The (possible) silver lining in this story: It it’s true that the SCOTUS is holding back the Ricci opinion in order to not damage Sotomayor’s confirmation chances, that would seem to indicate that they’re going to reverse her.

That is good news for anyone who cares about fairness. The white and hispanic firefighters who achieved the highest scores on the promotions tests were treated outrageously — and all because some loudmouth black “activists” were making threats, and the spineless politicians in New Haven didn’t have the stones to stand up to them and do the right thing.

I just hope Scalia got to write the majority opinion — and I hope he let all the offending parties (New Haven, the district court, and the Second Circuit weenies) have it with both barrels.

AZCoyote on June 14, 2009 at 8:00 PM

Sotomayer can’t be confirmed until after Souter resigns. Is he planning on resigning before this session ends? That seems unlikely.

So unless he resigns before the Ricci decision is announced, it’s going to precede Sotomayer’s hearings, won’t it?

Steven Den Beste on June 14, 2009 at 8:09 PM

Steven Den Beste on June 14, 2009 at 8:09 PM

I think they can hold the hearings while he’s still in office.

And just becauwe they start the hearings on July 13, doesn’t necessarily say how long they’ll go. The GOP senators want more documents. And they can stall it by refusing the one GOP vote she needs to get out of committee. It’s likely some squish (Graham, Hatch, Grassley) would ultiamtely be that vote, but they might hold off and let the rest of the GOP ask all the questions they want.

She told DeMint in her meeting with him that she didn’t think the Second Amendment applied to the states. That should get interesting.

Wethal on June 14, 2009 at 8:26 PM

I think this Court will go down as one which Bowed to political expediency on more than one occasion.

They would NOT take up the case of Obama’s dual citizen status, and the Natural Born Citizen Clause.

They would NOT take up the blatant violation of Bankruptcy laws in the Chrysler case.

They would NOT take up whether TARP was constitutional (it was in the same Chrysler case).

Now, delaying the announcment of a decision so Soto does not have to answer for it during her confirmation hearings? which the Dems and the Precedent are trying to hurry though?

I can see that they may think that NOT supporting the administration could send us into Consitutional Chaos… but it also means that one major check on the system is now gone.

Romeo13 on June 15, 2009 at 10:25 AM