Monday, June 15, 2009

The Blog "Hot Air" Stays True to Its Name With Article Suggesting Supreme Court Intentionally Delaying Ruling in Ricci

The blog "Hot Air" has stayed true to its name by publishing an article which suggests that some justices on the Supreme Court are intentionally delaying a ruling in Ricci v. DeStafano in order to secure the confirmation of Sonia Sotomayor. Although fellow law professor blogger William Jacobson, whose blog (Legal Insurrection) I admire and include in my blog roll, originally published the essay, I find the conclusion sketchy and unsupportable.

Jacobson's argument responds to an article in the Blog of the Legal Times, which analyzes a recent appearance by Justice Ginsburg on CSPAN. During her appearance on CSPAN, Ginsburg noted that the Court had rendered a substantial amount of 5-4 rulings this year and that it would soon issue additional split decisions.

Ginsburg also stated that "one can safely predict [that Ricci], will be among the last [decisions] to come out before the term ends." Ginsburg also praised Sotomayor, stating that "I was cheered by" her nomination and that "I look forward to a new colleague well-equipped to handle the challenges our work presents." Although Supreme Court justices rarely comment on the confirmation process, they have done so in the past. As BLT reports, Justice Stevens and Justice White spoke favorably regarding Judge Bork during his highly controversial and ultimately unsuccessful confirmation bid.

Ginsburg's comments, however, lead Jacobson to worry about the motivation of the justices:
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.
Although I will concede that Ginsburg's comments could lead to the concerns held by Jacobson, for the following reasons, I believe that his worries are unwarranted. First, the Ricci decision will probably appear among the last cases this term because it, like the Voting Rights Act case, presents challenging legal issues that will deeply divide the Court. Although much of the public discourse surrounding Ricci portrays it as a slam-dunk case wrongly decided by the Second Circuit panel (that included Sotomayor), the law is, in fact, much more complicated than this public discourse acknowledges.

It is not uncommon to find difficult and divisive cases among the final entries by the Court. Grutter v. Bollinger and Gratz v. Bollinger, two closely divided and important affirmative action cases, were decided on June 23, 2003. Last year's 5-4 ruling in the Second Amendment case Heller v. District of Columbia was issued on June 26. And the Court released its 5-4 ruling upholding the Boy Scouts of America's discriminatory policy prohibiting membership by gays and lesbians on June 28, 2000. This is not a scientific study. Instead, I am simply attempting to demonstrate that in my experience, it is not uncommon for the Court to decide divisive and important cases near the end of the June. Accordingly, the fact that Ricci presents complicated legal and factual questions that divide the Court could explain why the Court will decide it near the end of the current term.

Jacobson believes that the Court could delay issuing a ruling in Ricci until late July. But if the Court goes on recess at the end of June, as is customary, then the Ricci decision will probably emerge in the next two weeks -- not in July.

Furthermore, I doubt that the Supreme Court justices have attached as much importance to Ricci as Sotomayor's political opponents. First, because Sotomayor has voted on thousands of cases, isolating one and trying to make it a critical element in an evaluation of her fitness for the bench seems arbitrary and irrational. Also, because the law in this area is close -- as demonstrated by the divided en banc decision -- the effort to use this case in order to defeat Sotomayor's nomination is pretty weak.

Finally, if, as Ginsburg suggests, this case is among a slew of forthcoming 5-4 rulings, then 4 Supreme Court justices, 7 Second Circuit judges (including Sotomayor), and one Federal District Judge will have all voted against Ricci and in favor of the City of New Haven. This breakdown does not support conservative arguments that cite to Ricci (and its potential reversal) in order to portray Sotomayor as a wayward judge who is incompetent and unable to apply the law correctly. Instead, the number of judges who could potentially agree with Sotomayor provides further evidence that her opponents' citation to Ricci (and its possible reversal) is merely a game of politics -- rather than an honest discussion of the legal issues the case presents.

PS: Although I doubt that the Supreme Court is playing confirmation politics, I believe that the Democrats sought a mid-July date for the start of Sotomayor's confirmation hearings because that would allow two weeks for any fallout over Ricci to subside.


Anonymous said...

Dear Mr. Hutchinson: We'll know if fifty years if the Court is playing politics. It's happened before, as the delay in the release of the notorious KOREMATSU opinion in 1944 shows. Those who know aren't going to say much, and reading the tea leaves from outside is a mug's game. Even if a clerk came through with the truth, it wouldn't be accepted. It would be denounced as vicious gossip in the manner of the ALMANAC OF THE FEDERAL JUDICIARY (by you) or the camorra of blackmailers in the American Bar Association ratings committee (by me.) Both are anonymous, which bothers both us about half the time...

I am glad to see you write: "...then 4 Supreme Court justices, 7 Second Circuit judges (including Sotomayor), and one Federal District Judge will have all voted against Ricci..." That gets to the heart of RICCI: giving the works to some witless dolt who thought studying hard, investing $1000 of his own dough, and cramming for three months on his own time was the road to success, laughing raucously while doing so. For all the blubbering about the injustices showered on SS by the confirmation process, I think a bit of sympathy for Ricci would be in order. I also note the legal argument you use: whichever side wins will do so because of the ancient, powerful legal argument that five is bigger than four. Thus the notion that "an honest discussion of the legal issues" isn't forthcoming because "the law is much more complicated" is silly. Judicial arithmetic isn't complicated, even in this math-deficient world.

Why worry? Do you doubt that, come October, SS will not be handed the robes of James Clark McReynolds and will have to put them on, shuddering and grimacing even while Scalia laughs raucously? So what if she's roughed up in confirmation? No Justice has been honest in confirmation hearings since Robert Bork, and look what happened to him. Even Bork had a slew of confirmation conversions that no one believed, and only 42% paid lip service to. (It hasn't only been the lefties who have dissembled: listening to John Roberts's assertion that he was just like an umpire calling 'em as he saw 'em was good for a snicker.) I listened to the oral argument in RICCI, and SS's performance filled me with gloom. If you define a racist as someone who uses race as a measuring stick, SS should fill you with gloom and doubt about the progress of race relations in this country. But The One's 60 seat express will get her home, and the mischief was done by the voters last fall. SS will be confirmed, as the rules say she should. Attempts at filibustering will fail, so BOHICA, GOP, BOHICA. So what if a mass of spitballs are heaved at her? You aren't going to try to argue that SS is facing a worse ordeal than Roberts or Alito, let alone Thomas, are you? The GOP should vote against SS unanimously, reading into the record The One's objections to John Roberts as they do so. But she will be in the McReynolds's robes, come October.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

And of course, the Sotomayor ruling is on the magnitude of a Supreme Court decision in a time of War.....

Greg, welcome back. Sometimes I wonder if you read before you rush to whack out your essays. Although you slight me for pointing to the closeness of the votes in Ricci, because that is not legal analysis, the front page of this blog contains an essay on the case: WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy. Furthermore, the vote breakdown substantiates my position that the case has possibly divided the Court -- which has probably led to the lateness of the ruling (which is not really late at all). Were people complaining that Heller was late? No.

The Almanac of the Federal Judiciary is a gossip rag. I have never used it to rank judges, and my opposition to it did not begin with Sotomayor. In fact, another blogger has analyzed previous issues and has shown that up until 2007 she didn't even have any negative comments, but that the new edits took a markedly different spin (even suggesting that J. Rosen is related to the editor - without proof).

The ABA, by contrast, interviews a cross-section of people, including judges, law professors, lawyers, former clerks, etc., and has a team of lawyers and professors review the candidate's writings. The ABA rankings were used consistently by presidents and Congress since the 1950s until Dubya, in his wisdom, ran from them. Although he blasted them as partisan, I believe that just about every conservative on the bench, except for possibly Thomas, received unanimous "well qualified" rankings. I, unlike you, have been consistent in supporting the ABA and despising the AFJ. Accordingly, your suggestion that I would selectively embrace either is bogus.

PS: If listening to the oral arguments in Ricci was the first indication you had that race relations were bad, then you need to get out more.

Darren Lenard Hutchinson said...

Another point: If the court really wanted to help Sotomayor, it would release the "already decided" Ricci opinion now (or have done so earlier), so that it would completely die down by mid-July. This conspiracy theory does not even make sense even if it were true.

Anonymous said...

Dear Mr. Hutchinson: Many thanks for the nice welcome back. I've been getting out as you suggest...

I don't have a scrap of evidence that RICCI is being delayed, outside of the circumstances related above. I doubt that the opinion is being held up for political reasons. But I can't prove that either. You are right that SS's nomination (or any Justice's for that matter) is nowhere near the scale of KOREMATSU. But I didn't realize that fudging the release of opinions is fine so long as it doesn't exceed an unspecified limit. As I say, in fifty years we will know for sure if RICCI has been fudged. My bet: it has not, and the folks at HOT AIR are maddened that SS is about to put on the robes of McReynolds without their being able to do anything about it.

The defense by reputation you give the ABA doesn't mean much. My objection to the ABA is straightforward: everyone on the evaluating committee is anonymous. There's no reason for them to be. Who is on the committee? You say, "law professors" (who all have tenure) and judges (the federal and many of the state) who have life tenure. Why do they need anonymity? They've been given these protections, which the laity do not have, so why the need to be anonymnous. The ALMANAC, per contra, relies on clerks and practicing lawyers who can (and are---see JamEs Stewart's THE PROSECUTORS or Joseph Goulden's THE BENCHWARMERS for numerous dismaying examples of judicial pettiness and malice) retaliated against with ease. Gossip? Could be. But no more so than the ABA. Citing of precedent in its usage doesn't mean anything. There's no constitutional requirement for the ABA to butt in, and I don't think there's any statutory requirement either (correct me if I'm wrong.) You have omitted the one ABA ranking that blows up the ABA's credibility: the Bork ranking. It split 4-2 as I recall, 4 howling that Bork was the greatest candidate ever and 2 bawling that he was a worm in the muck. No explanation given for this remarkable split. Since there's no constitutional/statutory requirement, Geo. W. was perfectly right to heave the ABA overboard. Let those tenure-protected and life appointed assassins come out in the open, where there shenanigans can be watched. Tell me this: would any member of the laity NOT be sworn if he was a witness in any trial, because said member is such a swell person who is unanimously considered to be a hero? Hardly. "The law is the law, and applies to everyone equally." Let the ABA sign their findings and they will command my respect. But not power---and that's the name of this game.

You are right, I need to get out more. But you need to stay in more. The nation has just elected a black man president. To be sure, some cranks howl that he isn't really "black" because he's "African" not "Afican-American." Then there's RICCI, which many say was properly decided because the white guys lost. Given these two data points, why are race relations "bad?" Recall the notorious question Lewis Powell asked Thurgood Marshall in 1978: how long would affirmative action have to be continued in this country to get to the sunlit highlands? A century, said Marshall, thoroughly unsettling Powell. Thirty one years on, how is affirmative action doing? I think we're on opposite sides on this one. Might be a good place to have that conversation on race that The One and Eric Holder are always bawling for, but never give. We could start by examining the case of Monica Conyers who is doing her part to keep politics colorful, if not honest.

Sincerely yours,
Gregory Koster
(not of CUNY)

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