The Supreme Court reverses Ricci.
The Court has released the opinion in Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), holding for the plaintiff firefighters that the City of New Haven cannot be sued for disparate liability. The decision below is reversed and remanded in a 5-4 opinion by Justice Kennedy. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justices Scalia and Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined. The opinion is available here.
This creates a big problem for Obama and the Democrats in Congress. They certainly have the votes to confirm Sotomayor, but their big sell — that she was one of the appellate court’s most brilliant minds — just took a body blow on this decision. Most people want to move past the old arguments on race and hiring, feeling that forty years of affirmative-action policies have run their course. Having to defend a jurist who attempted to impose them in a court case will not make Sotomayor seem moderate or reasonable at all, but extreme and perhaps less than competent.
Erick Erickson at Redstate
Jennifer Rubin at Commentary:
Those who saw a great injustice in dismissing Ricci’s claim are heartened that he received a clear and definitive win. The proponents of identity politics and defenders of Sotomayor have their work cut out explaining how Ricci couldn’t manage to find a full resolution of his claim in the Second Circuit and why we should have confidence in Sotomayor’s ability to spot, let alone resolve correctly, important discrimination issues.
UPDATE: James Joyner:
It’s worth noting that the Justice that Sotomayor would replace, Souter, ruled in the way she would reasonably have been expected to and that the outcome of this case would presumably have been the same were she on the Court.
On it’s face, however, Ginsburg’s dissenting opinion is absurd. The firefighters in question certainly had a right to be promoted under the extant rules of the game. Promotions were based partly on a test. They did well on the test and would have been promoted but for racial discrimination. The fact that fear, doubt, and uncertainty yielded a situation where nobody was promoted does not in any way mitigate the harm done to them.
UPDATE: Joe Klein in Swampland
At National Review’s The Corner, Peter Kirsanow
At Bench Memos:
There is nothing moderate, mainstream, or nonideological about that. This demonstrates that the White House spin on this nominee is a pure fabrication.
Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.
What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.
UPDATE: Another SCOTUSBlog post
Two posts from Paul Mirengoff, here and here.
UPDATE: At The Corner:
Ponnuru again
Doug J. on Taylor
Jennifer Rubin in Commentary, quoting Taylor
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