Should we be surprised? Despite the GOP’s angry rants against “empathy” in judicial decisionmaking, the minority witness list reveals one star — Frank Ricci, the plaintiff/petitioner in Ricci v. DeStefano, the reversal of which GOP opinionmakers have desperately (and wrongly) spun as a stunning blow to Judge Sotomayor.
I have the utmost respect for Frank Ricci: he was the victim of a sort of ripsaw latent in Title VII, which the Supreme Court eventually resolved, rather poorly, but nonetheless in his favor. But because this was a very hard case, it’s wrong to spin him as a victim of judicial malice, and even more wrong to use him as a political prop in the GOP’s inconsistent & ill-conceived quest against Judge Sotomayor. Perhaps what Jeff Sessions, etc., meant to say is not that empathy is irrelevant to the process of judging, but that it’s only relevant when they can properly exploit it for political gain.
So Ricci v. Destefano was a very difficult case? Then why was per curiam (unsigned or officially anonymous) opinion only eight sentences long?
I think Sotomayor’s effectively summary dismissal of the case in favor on the broadest view of Title VII is important enough to this country that the victim of her decision should be heard at her confirmation hearing.
Posted by jonolan | July 9, 2009, 4:25 pmThere’s been a lot of speculation on the meaning of the per curiam affirming opinion. I think it’s too odd to suppose that it was meant as a perfunctory insult — judges don’t do that. And remember, Sotomayor wasn’t the only one in the case. Most theories suppose the full panel couldn’t settle on a controlling rule of law and, as a compromise, simply affirmed the trial court, punting the matter to the Supreme Court, who promptly resolved it. If that’s the case, and it likely is, you’re going to lose another talking point in the process: that’s a profoundly non-activist decision to make.
Posted by ACG | July 9, 2009, 7:24 pmI don’t think it was a deliberate insult. I just think that Sotomayor and the other to judges didn’t find it to be a difficult case.
Orginally they just rendered a summary judgement upholding the District Court’s dismissal of the case.
That also shows that they were not interested in passing it up to the SCOTUS, but rather felt that the lower court had ruled correctly and that the matter needed to go no further.
Posted by jonolan | July 10, 2009, 11:53 am… almost any case that makes it to the supreme court is a tough decision, otherwise it would have been thrown out. Then add on that it was a 5-4 decision where the 4 read from the bench (a sign of strong disapproval), and those 5 that ruled said that their ruling statutory and not constitutional…all show that this was a tough case.
Posted by Oneiroi | July 9, 2009, 5:04 pm