Taking Off The Blindfold

There's something about the notion of liberal judges versus conservative judges that has always bothered me. I was taught that justice is blind, which means justice should be neither liberal nor conservative. Justice should be neutral on political matters. Justice should apply the law. When politicians like President Obama start saying they want judges with empathy for certain groups of people, we are being led astray. I know I wouldn't want to stand in front of a judge with empathy for groups A and B if I was a member of group C. In such a scenario, I'm pretty sure that justice is not what I would get. In such a scenario, a kangaroo court is much more likely. I don't want a judge who is a liberal activist or a conservative activist. I don't want a judge who is trying to fix all the problems of society. That is not the role of a judge.

I don't want a judge who says things like the following, which were said by Obama's Supreme Court nominee, Sonia Sotomayor:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

"Whether born from experience or inherent physiological or cultural differences our gender and national origins may and will make a difference in our judging."

"All of the legal defense funds out there, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made."

Judges should not make policy, and the law doesn't change based upon your gender, race, or cultural background. The law exists outside those things, and should be equally applied. Judge Sotomayor says she has great respect for the Constitution, as all Supreme Court justices should, but there is one recent decision she made where she didn't apply any Constitutional principles at all. In fact, she completely ignored them. That case was Ricci v. DeStefano, where Sotomayor upheld a lower court ruling dismissing a racial discrimination claim. Here are the facts:

U.S. Appeals Court Judge Sonia Sotomayor, mentioned as a possible Supreme Court nominee, voted to deny a racial discrimination claim in a 2008 decision. She dismissed the case in a one-paragraph statement that, in the opinion of one dissenting judge, ignored the evidence and did not even address the constitutional issues raised by the case.

The case, Ricci v. DeStefano, involved a group of 19 white firefighters and one Hispanic firefighter who filed suit in 2003 claiming that the city of New Haven, Conn., engaged in racial discrimination when it threw out the results of two promotion tests because none of the city’s black applicants had passed the tests.

Each of the plaintiffs had passed the exam. The case is currently before the U.S. Supreme Court.

The city threw out the results because it feared potential lawsuits from activist groups if few or no minority candidates were promoted. The city also claimed that in addition to potential lawsuits, promotions based on the test results would undermine their goal of diversity in the Fire Department.

The firefighters sued, arguing that New Haven was discriminating against them by deciding that the tests would promote too many white candidates and too few minorities.

U.S. Appeals Court Judge Sotomayor issued an order that affirmed Arterton’s decision, issuing a one-paragraph judgment that called Arterton’s ruling “thorough, thoughtful, and well reasoned.”

But according to dissenting Judge Jose Cabranes, the single-paragraph order issued by Sotomayor and her colleagues ignored over 1,800 pages of testimony and more than an hour of argument–ignoring the facts of the case.

“(T)he parties submitted briefs of 86 pages each and a six-volume joint appendix of over 1,800 pages; plaintiffs’ reply brief was over thirty pages long," Cabranes wrote.

"(O)ral argument, on December 10, 2007, lasted over an hour,” Cabranes explained, adding that more than two months after oral arguments, Sotomayor and the majority panel upheld the lower court in a summary order “containing a single substantive paragraph.”

Cabranes criticized Sotomayor and the majority for not explaining why they had sided with the city in their new opinion.

“This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit,” Cabranes wrote in his dissent.

Judge Cabranes also said that Sotomayor’s opinion failed to address the constitutional issues of the case, saying the majority had ignored the facts of the case as well.

“It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case,” the judge criticized.

“This Court has failed to grapple with the questions of exceptional importance raised in this appeal,” Judge Cabranes concluded. “If the Ricci plaintiffs are to receive such an opinion from a reviewing court they must now look to the Supreme Court. Their claims are worthy of that review.”

To me, this looks like Sotomayor had empathy for one group, but no empathy at all for another group, the plaintiffs. It looks like Sotomayor's brand of "justice" takes off the blindfold and evaluates the worth of one person relative to another. It looks like Sotomayor wasn't even thinking about the merits of the case at all, only with the implications it might have for Sotomayor's preferred groups of people in the future. I wonder if those 19 New Haven firefighters are impressed by Sotomayor's brand of empathy.

The Supreme Court is expected to overturn Sotomayor on this case.