Home Our Focus Areas Roger Clegg Columns A Reply to Mike Littwin

A Reply to Mike Littwin

Thursday, 16 July 2009

In his July 17 Denver Post column, Mike Littwin sees an inconsistency between Republicans insisting that judges be unbiased, on the one hand, and showing the real-world consequences of judicial bias, on the other. Of course, there is no inconsistency at all. That’s why, contrary to Mr. Littwin’s column, there was nothing wrong with Republicans on the Senate Judiciary Committee inviting the discriminated-against firefighters in the New Haven case to testify against Judge Sotomayor, who had thrown out their discrimination claims: judicial activism in pursuit of her own identity politics. But let me back up a bit, and discuss the connection here of judicial activism, Judge Sotomayor’s identity politics, and the New Haven firefighters case. There is a lot of misinformation and disinformation floating around these days about the definition of “judicial activism.” It’s really quite simple: When a judge substitutes his or her own policy preferences for what the text of the law says, that is judicial activism. The classic instance is making up a constitutional guarantee that is not actually in the Constitution. But judicial activism can also involve ignoring a guarantee that is in the Constitution. And it can involve ignoring the text of a statute as well as the text of the Constitution. Which brings us to Ricci v. DeStefano, the New Haven firefighters case just decided by the Supreme Court. The case was already front-page news before President Obama nominated Judge Sotomayor to the Supreme Court; now it is of even greater interest, since Judge Sotomayor joined the per curiam decision by the court of appeals that the Supreme Court reversed. The case involved applicants for promotion in the fire department of New Haven, Connecticut. The city administered a test, but then decided to throw out the results because too many whites, and not enough African Americans, did well on it. The firefighters who had earned promotions then sued, arguing that they had been discriminated against on the basis of race, in violation of Title VII of the 1964 Civil Rights Act and the U.S. Constitution. The text of Title VII is all about telling employers that they must ignore race and ethnicity (as well as sex and religion) in their treatment of employees. The statute also says that testing is fine and that nothing in it requires racial or ethnic balancing. Yet Judge Sotomayor ruled that it violated no law for the city to throw out the promotion test results! To do so, she seized on one subsection of Title VII, which makes it possible for employers to be sued if they use a selection device that has a significant “disparate impact” on the basis of race or ethnicity, unless that device is “job related for the position in question and consistent with business necessity.” But it is very odd to seize upon a relatively small part of Title VII and read it in a way that swallows the antidiscrimination focus of the overwhelming bulk of the statutory scheme. Such a reading not only undermines Title VII, but also the Constitution, which forbids government employers from denying “the equal protection of the laws.” There is nothing in the Constitution’s text that suggests an exception when the discrimination is of a politically correct variety. And is there some reason to suppose that this distortion of the legal texts involved was driven by Judge Sotomayor’s personal policy preferences, the definition of judicial activism? Alas, yes. Judge Sotomayor’s now well-publicized extrajudicial pronouncements in these areas suggest that she is deeply immersed in identity politics. In particular, she has been very aggressive in her support for affirmative action and other selection policies to ensure politically correct numbers. Readers wanting more specifics on Judge Sotomayor’s deep drinking from the dark and poisonous well of identity politics, and how it relates to the New Haven firefighters case, should read Linda Chavez’s testimony against Judge Sotomayor this week: http://www.ceousa.org/content/view/706/119/ Anyway, if a test or other selection device is colorblind in design, administration, and grading, then it is not, to quote Mr. Littwin, “discrimination that isn’t exactly discrimination”—rather, it isn’t discrimination at all. No, discrimination is when someone’s promotion is thrown out because he is the wrong color, that’s what happened to the New Haven firefighters, and that’s what those men explained to the Senate Judiciary Committee. Roger Clegg is president and general counsel of the Center for Equal Opportunity in Falls Church, Virginia.