Media use Ricci to revisit "racist" smear of Sotomayor

Following the Supreme Court's decision in Ricci v. DeStefano -- reversing by a 5-4 margin a decision by the 2nd U.S. Circuit Court of Appeals -- conservative media figures including Rush Limbaugh, The Washington Times and Investor's Business Daily have used the decision to revisit smears that Sotomayor -- in the words of Limbaugh -- "is racist." Media Matters for America has documented numerous instances of conservative media figures labeling Sotomayor racist since President Obama nominated her to replace retiring Supreme Court Justice David Souter.

Discussing the Ricci decision during his radio program, Limbaugh stated, "Sonia Sotomayor was following her basic instinct. She is racist, in her own words." He continued:

Remember, she's out there and said a number of times that a Latina -- a Latina woman -- would bring a much richer and diverse experience to the court than a white male would. That's racist, pure and simple. And she had sympathy, and so did the dissenting opinion of the Supreme Court, sympathy for the white firefighters, but that sympathy wasn't enough. She ruled on the basis of just, you know, a racist belief that minorities should always be found in favor of simply because they are minorities, pure and simple, regardless of the merits of any particular case.

Limbaugh was not alone in using the Ricci decision to revisit and advance the smear:

• A June 30 Washington Times editorial asserted, "In Judge Sotomayor's America, people are judged by the color of their skin, not the content of their character. In Judge Sotomayor's America, ability and the drive to excel are sent to the back of the bus. In Judge Sotomayor's America, justice only applies to those to whom she says it does. In Judge Sotomayor's America, white men need not apply."
• A June 29 Investor's Business Daily editorial asserted, "The Supreme Court's overturning of high-court nominee Sonia Sotomayor's ruling in the New Haven firefighter case exposes what lies at the core of her misguided philosophy: stark racial favoritism."

But the court's four dissenters, in an opinion authored by Justice Ruth Bader Ginsburg, agreed with the lower courts that "what this case does not present is race-based discrimination in violation of Title VII." Moreover, as Supreme Court litigator Tom Goldstein wrote in a May 29 SCOTUSblog post that after reviewing 96 race-related cases Sotomayor decided on the court of appeals, "it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

From the June 29 edition of Premiere Radio Networks' The Rush Limbaugh Show:

LIMBAUGH: Now, the Sotomayor case -- I want you to hear the state-run media describe the bad news. There is no question Sotomayor was overturned. Her court decided in favor of the city of New Haven and the black firefighters who didn't score as well on tests -- summary judgment without a trial -- and they have been upbraided for this by not only the majority of the Supreme Court today, in Anthony Kennedy's opinion, but also by Ruth Bader Ginsburg in the dissent.

And this is why brilliant legal analysts are saying this decision, when you get right down to it, is actually nine-zip, not 5 to 4, when you look at some of the things that Ginsburg wrote about the mistakes here in not even hearing the case, not even taking the constitutional questions.

And the reason for this is -- I go back to what I said at the beginning, and I stand by this. Sonia Sotomayor was following her basic instinct. She is racist, in her own words. Remember, she's out there and said a number of times that a Latina -- a Latina woman -- would bring a much richer and diverse experience to the court than a white male would. That's racist, pure and simple. And she had sympathy, and so did the dissenting opinion of the Supreme Court, sympathy for the white firefighters, but that sympathy wasn't enough. She ruled on the basis of just, you know, a racist belief that minorities should always be found in favor of simply because they are minorities, pure and simple, regardless of the merits of any particular case. That's who Obama has nominated.

From the June 30 Washington Times editorial:

The case is another illustration of Judge Sotomayor's biased view toward jurisprudence. There are numerous examples, from her 1994 comment that "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion" than a white judge, to her lengthy 2001 exposition on the centrality of ethnic identity to her decision-making, "A Latina Judge's Voice." A close examination of the 300 boxes of materials from Judge Sotomayor's years as a lawyer with the Puerto Rican Legal Defense and Education Fund would no doubt lend even greater insights into her views on the importance of ethnically weighted outcomes. The danger of the contents of these 300 boxes of information is one reason why Senate Democrats are hell-bent to rush through her hearings before the record can be revealed.

Most Americans, including a majority of Democrats, side with the high-scoring firefighters in the Ricci case because their plight spoke to the American sense of fair play. Those same Americans would not approve of Judge Sotomayor's inherently biased approach to justice, and Senate Democrats do not want to take the chance that they will find out. Once their hurry-up offense puts Judge Sotomayor on the bench, she will be free to enshrine her racially biased views into case law for decades.

The New Haven firefighters who did well on the promotion test played by the rules. They did what was asked of them to advance their careers and provide for their families. They prepared; they studied; they excelled. They competed fairly on a level playing field and came out on top. But honest achievement is not valued in Judge Sotomayor's America.

In Judge Sotomayor's America, people are judged by the color of their skin, not the content of their character. In Judge Sotomayor's America, ability and the drive to excel are sent to the back of the bus. In Judge Sotomayor's America, justice only applies to those to whom she says it does. In Judge Sotomayor's America, white men need not apply.

From the June 29 Investor's Business Daily editorial:

The Supreme Court's overturning of high-court nominee Sonia Sotomayor's ruling in the New Haven firefighter case exposes what lies at the core of her misguided philosophy: stark racial favoritism.

Thanks to the court's ruling Monday in Ricci v. DeStefano, all the YouTube video clips from Judge Sotomayor's old speeches and conferences take on a clearer meaning now.

Her claims that she was cheated when she took the racially skewed SATs, her contention that a Latina judge is morally superior to a white male judge, her mock sotto-voce declaration that appellate courts make policy -- they have all been distilled and disposed of in one shot by the high court majority.

The court ruled 5-4 that the city of New Haven was guilty of reverse discrimination. Fearing lawsuits, New Haven had thrown out the results of fire department exams it conducted after only two Hispanics and no blacks from its firefighter ranks scored high enough to warrant promotions. It got sued anyway, as 18 firefighters claimed they were victims of reverse discrimination.

A three-judge panel of the 2nd Circuit Court of Appeals, including Judge Sotomayor, sided with the city. One of Sotomayor's fellow 2nd District judges -- Clinton appointee Jose Cabranes -- charged that the panel's Lilliputian opinion contained no "clear statement of either the claims raised by the plaintiffs or the issues on appeal," plus "no reference whatsoever to the constitutional claims at the core of this case."

As Justice Kennedy's opinion noted, "there is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other equally valid and less discriminatory tests were available to the City." He concluded that New Haven had violated Title VII of the Civil Rights Act, which forbids employer discrimination.

But what need is there for pesky things like evidence when a judge has "empathy" -- the quality that President Obama said was so important in a Supreme Court justice? A justice can sit back and declare that in her view the members of a downtrodden minority group are more worthy of favors than those in the majority -- appellate court policymaking at its purest (more properly known as judicial imperialism).