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OpEdNews Op Eds    H1'ed 6/7/09

Sotomayor and the White Reverse Racist Judges

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Message Bruce Morris

The media, both mainstream and even progressive alternative have, in my view, missed a very important counter to the arguments that Justice Sonia Sotomayor's decision in the New Haven firefighter case was an example of “reverse” discrimination, or as the right wingers are calling it now, “reverse racism”. The first important fact to understand is that the case, Ricci v. DeStefano, was decided by a three-justice panel of the Second Circuit Court of Appeals, originally by summary order and later by a per curiam opinion. This simply means that the case was not resolved with a detailed opinion as most of us are accustomed to seeing with appellate cases, especially cases certain groups designate as controversial. Ricci was decided with a short statement by all three judges very briefly explaining their decision and mainly referring to the opinion of the trial judge. The primary import of the panel's decisionmaking process is that the decision cannot be ascribed primarily to Justice Sonia Sotomayor, but is the equal product of each of the three justices.

In seeking the truth on whether any racist or discriminatory motive played a role in the decision, it would be important to know who those other two justices are, would it not? The fact that the corporate mainstream and right-wing media have told us nothing betrays their motives as primarily to stoke the controversy for their commerical, political or social interests rather than inform citizens. Not exactly a news flash, I realize, but a point that must be made at every opportunity.

Sotomayor's fellow justices on the Ricci panel were Justices Robert Sack and Rosemary Pooler. Just as one would expect from their names, both justices are white and both are middle-aged or better.

If Sotorrmayor is a reverse racist, then Sack and Pooler must, by definition, also be reverse racists (or, better yet, race traitors for ruling against their white brethren). Oh, but that brings up another point. One of the plaintiffs in Ricci is an hispanic fire fighter, meaning Sotormayor must also willing to rule against a member of her own race, so determined is she to discriminate against white males in the process.

I have not heard one right wing critic or blowhard suggest that the other members of the panel were guilty of reverse discrimination. Nor have I heard or read the corporate mainstream media point out their presence on the panel and equal role in the decision as factors weighing against the influence of racism (progressive media has left this sitting as well, unfortunately). I believe the knowledge that this decision was supported as equally by two white justices as by Sotormayor has to remove much of the momentum behind the suggestion that it evinces a bias in her judicial philosophy. (I understand that the races of judges should be irrelevant and in fact are irrelevant to me; however, a lot of Americans do suspect minorities in powerful positions of reverse discrimination and knowing white people agree with their decisions does reduce that suspicion for many.)

Sack and Pooler likewise do not have backgrounds opening them to claims that “they are worse than racists, they are libruls”. Like Justice Sotomayor, both Justices Sack and Pooler were appointed to the Court in 1998 by President Clinton, a librul to the regressives for sure. But, both, like Justice Sotomayor, were confirmed by a Senate controlled by Republicans. I have heard not one right-winger accuse the Republican Senate of the late 1990's of engaging in the business of approving racists for the federal bench. You can find Justice Sack's and Pooler's official biographies here, along with the rest of the Second Circuit, but suffice it to say, they are both exemplary and both full of essentially mainstream to moderately conservative jobs and achievements.

Examination of other processes in the Ricci decision only degrade even further the right wing's epithets and the corporate media's complicity in fostering controversy for ratings. The Ricci panel's per curiam opinion esentially adopts the “thorough, thoughtful, and well reasoned opinion” of the district court judge who decided the case. In order to evaluate racist motive, should we not also know a little about this judge?

Her name is Janet Bond Arterton, and as her name also suggests, she is white. She was appointed by President Clinton in 1995 and confirmed by a Republican Senate. Has the right wing called Janet Bond Arterton a reverse racist or race traitor?

So far we have four federal judges involved in the Ricci decision and three of them are white and all four were confirmed by Republicans. Whatever else one may think of the Ricci decision, it stretches credulity to conclude it arose from the “racism” of a so-called angry, judicial-activist, minority female.

But there is more. The entire Second Circuit voted on whether to conduct a rehearing en banc for the case. A rehearing en banc is a procedure in which an entire circuit court of appeals can rehear and decide on a case already decided by the three-judge panel to which it was assigned. In this case, the justices of the Second Circuit voted against reconsidering the panel's decision. The vote was close, 7-6, but the entire Second Circuit, nevertheless, upheld the panel's decision.

Are the majority of justices on the Second Circuit racists too? It is just silly at this point.

That Sotomayor was joined by so any other judges should also be emphasized to lessen the impact on her confirmation process when the Supreme Court reverses Ricci, as it is widely expected to do.

One brief note on the substance of Ricci. The case did not involve an affirmative action program in which the City of New Haven sought to advance minorities over more “qualified” or senior white fire fighters. Instead the City was trying to avoid discriminating against minority fire fighters and violating Title VII of the Civil Rights Act. The City created a written test fire fighters had to pass for promotion. When no African-American and only one Hispanic fire fighter passed the test, the City became concerned that perhaps the test was discriminatory or could be considered as such under the law. The City decided the best path was to ignore the test and base promotion on other factors. The City was in a tough spot, as going forward with the test results would likely have engendered a suit by the minority fire fighters. The Dictrict Court decided the City was acting in good faith to comply with the law and therefore did not discriminate.

Emphasizing the difference between a program to advance minorities over whites and an action to avoid discrimination against minorities is important. While I generally agree with affirmative action programs despite having been on the business end of them in the past, I know a lot of otherwise progressive or moderate people who feel differently. Most of those same people, though, do not believe minorites should be discrimated against. Casting Ricci as a case about avoiding unlawful discrimination, which is what it is, after all, is much more advantageous to progressives than allowing it to be portrayed as a reverse discrimination, affirmative action case.

So, spread the word. Either Ricci was the result of judges doing their best to uphold and follow the law, or there are a lot of white federal judges in the Northeast with an agenda to discriminate against white people.

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Bruce is 46 year-old father of one, stepfather of three and grandfather of two, who left a lucrative law practice at a large national law firm to work, advocate and write for social justice and equality and find a way to incorporate a spiritual life (more...)
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