What will she do for an encore?

Short of writing “get whitey,” It’s difficult to imagine how Judge Sotomayor could have fouled up the Ricci case any more than she did. Let’s count the ways.

First, her panel issued a summary order in a case that ended up being heard by the Supreme Court and generating a 5-4 decision with nearly 100 pages worth of opinions.

Second, Sotomayor’s panel was sharply criticized by her mentor, Judge Cabranes, for its “perfunctory disposition” of the case, in an opinion which suggests that Cabranes believed that Sotomayor and her fellow panel members were attempting to bury the matter.

Third, the Supreme Court reversed the panel.

Fourth, even the dissenting Justices blew off the reasoning of Sotomayor’s panel in a footnote, and fashioned their own, different standard for deciding the case.

Fifth, the dissenting Justices made it clear they would have disposed of the case differently than the way Sotomayor’s panel disposed of it. The panel affirmed the district court’s grant of summary judgment in favor of the City of New Haven, which would have ended the matter. The dissenters, in the panel’s position, would have remanded the case to the district court for further proceedings under the different standard for deciding the matter that it articulated.

The final point, regarding the disposition of the Ricci case, seems to have become a matter of confusion, but I think the dissenters were clear. Justice Ginsburg wrote that because the “lower courts,” including Sotomayor’s panel, applied an “intent” standard rather than considering whether the City of New Haven had “good cause” to act as it did (the dissent’s standard), “ordinarily a remand would be in order.” In other words, had the dissenters been sitting on the Second Circuit panel, they would have ordered a remand instead of affirming the district court, as Judge Sotomayor’s panel summarily did.

Judge Ginsburg went on to say that because “the Court [i.e., the majority] has seen fit to preclude further proceedings. . .I therefore explain why, if final adjudication by this Court is appropriate, New Haven should be the prevailing party.” Thus, it’s only because of what the majority did that the dissent goes beyond merely urging a remard. But when Judge Sotomayor heard the case, of course, no Supreme Court majority had seen fit to preclude further proceedings.

Judge Sotomayor’s work in Ricci should raise serious questions about either her competence or her capacity to handle difficult civil rights cases (essentially the only kind that make it to the Supreme Court) impartially.


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