It’s a particularly odd choice of case to be given such great scrutiny, Ricci v. DeStefano. Held as an example of why Sonia Sotomayor is unworthy of joining Clarence Thomas on the Supreme Court, despite the fact that it was a unanimous panel with Sotomayor as the most junior of the three 2d Circuit judges:
In the Second Circuit, Judge Sotomayor was the junior judge on the panel, which also included Judge Rosemary S. Pooler, who was the presiding judge at the argument, and Judge Robert D. Sack, who did not attend due to illness.
In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.
Liptak at the New York Times tries to make something interesting out of a decision that defies real controversy. But it was little more than a deference decision, no matter how one tries to spin it, ultimately following black letter law and a thorough 48 page district court opinion that was more than adequate to satisfy the outcome.
That sort of race consciousness, she said, may be perfectly lawful. “You can’t have a racially neutral policy that adversely affects minorities,” Judge Sotomayor said, “unless there is a business necessity.”
Try as one might, this isn’t a reflection of some strange devolution into activist racial lawmaking. It’s the law, and it’s been the law for a very long time. That non-lawyers, and lawyers who are unfamiliar with discrimination law, are unfamiliar doesn’t render it novel or damning. You may not like the state of the law, but that doesn’t change what it is.
According to Liptak, it wasn’t the result that was surprising, or improper, but that such an important case resulted in a summary decision rather than a lengthy published decision. What makes this such an “important” case? Were all the other thousands of case heard by Judge Sotomayor in her tenure on the Circuit trivial? One might think so, given the emphasis placed on Ricci, but I don’t for a moment believe that to be the case.
The reason that Ricci has emerged as a touchstone for those inclined to attack peaks through in Liptak’s piece in this “heated” exchange:
According to Liptak, it wasn’t the result that was surprising, or improper, but that such an important case resulted in a summary decision rather than a lengthy published decision. What makes this such an “important” case? Were all the other thousands of case heard by Judge Sotomayor in her tenure on the Circuit trivial? One might think so, given the emphasis placed on Ricci, but I don’t for a moment believe that to be the case.
The reason that Ricci has emerged as a touchstone for those inclined to attack peaks through in Liptak’s piece in this “heated” exchange:
“Firefighters die every week in this country,” the lawyer, Karen Lee Torre said. Using the test, she said, could save lives.
“Counsel,” Judge Sotomayor responded, “we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?”
That’s right. It’s the “do it for the children” argument, firefighter version. When the law is against you, and when the thrust of your position is to ask a judge to turn a blind eye to the Constitution, in this case ignoring the disparate impact of the test on minorities, and neither facts nor reason support your position, then devolve to the nadir of legal arguments, an appeal to emotion and fear. Judge Sotomayor blew a hole through that effort big enough for a busload of freedom riders to drive through.
But the key to why this case has become a cause celebre isn’t that it involved white applicants failing to get their appointments because the test was tossed for disparate impact; there’s nothing new about that at all. No-o-othing. Nothing. The key is the identity of the lawyer who made one of the worst possible, most disingenuous, most insulting and ignorant arguments possible in favor of Frank Ricci. The key is Karen Lee Torre.
Don’t like the outcome of Ricci v. DeStefano? Don’t blame Sotomayor. Blame Karen Lee Torre.
For those of you who are unfamiliar with that name, allow me to illuminate. I’ve mentioned her here a couple of times, much to her consternation. She thinks I’m a meany. I think she’s a twinkie. She actually used foul language to describe me, but I’m disinclined to indulge in the same word choices she makes. I’m too much of a gentleman.
Karen Lee is a rabid neo-con, and I apologize to all rabid dogs who may be insulted by the comparison. She’s like a lawyer version of Ann Coulter, except not as smart, attractive or persuasive, and that’s coming from someone who doesn’t find Coulter persuasive in the least. But like Coulter, Karen Lee is a true believer, foaming-at-the-mouth sort of person who will dedicate her life to the destruction of her political enemies. After she get smacked by Judge Sotomayor for her disingenuous, not to mention idiotic, argument on behalf of Frank Ricci, Sotomayor was written into the enemies column in permanent marker.
Notably, when Ricci was argued before the Supreme Court, they wised up and wouldn’t let Torre near the podium.
With Sonia Sotomayor on the short list of nominees should Obama win the presidency, the neo-con forces had a year to gear up for their attack, giving them plenty of time to hire a flak to promote the cause and find a scapegoat when it all came tumbling down around them with a resounding Senate confirmation. Who would be willing to sacrifice good name and credibility for such a losing cause? It would have to be a true believer. Someone who would do anything to help the cause. A person who hated Sotomayor. Where could anyone like that be found? And so all heads in the room turned to Karen Lee Torre, who, for a brief and shining moment, would be star, a martyr to the cause.
But Adam Liptak, quietly, in the way that a journalist lawyer tries to sneak in an idea so that it’s available for anyone who chooses to see it, plucked this exchange out of the 2d Circuit oral argument to show just what an awful job Torre did in arguing the case.
But the key to why this case has become a cause celebre isn’t that it involved white applicants failing to get their appointments because the test was tossed for disparate impact; there’s nothing new about that at all. No-o-othing. Nothing. The key is the identity of the lawyer who made one of the worst possible, most disingenuous, most insulting and ignorant arguments possible in favor of Frank Ricci. The key is Karen Lee Torre.
Don’t like the outcome of Ricci v. DeStefano? Don’t blame Sotomayor. Blame Karen Lee Torre.
For those of you who are unfamiliar with that name, allow me to illuminate. I’ve mentioned her here a couple of times, much to her consternation. She thinks I’m a meany. I think she’s a twinkie. She actually used foul language to describe me, but I’m disinclined to indulge in the same word choices she makes. I’m too much of a gentleman.
Karen Lee is a rabid neo-con, and I apologize to all rabid dogs who may be insulted by the comparison. She’s like a lawyer version of Ann Coulter, except not as smart, attractive or persuasive, and that’s coming from someone who doesn’t find Coulter persuasive in the least. But like Coulter, Karen Lee is a true believer, foaming-at-the-mouth sort of person who will dedicate her life to the destruction of her political enemies. After she get smacked by Judge Sotomayor for her disingenuous, not to mention idiotic, argument on behalf of Frank Ricci, Sotomayor was written into the enemies column in permanent marker.
Notably, when Ricci was argued before the Supreme Court, they wised up and wouldn’t let Torre near the podium.
With Sonia Sotomayor on the short list of nominees should Obama win the presidency, the neo-con forces had a year to gear up for their attack, giving them plenty of time to hire a flak to promote the cause and find a scapegoat when it all came tumbling down around them with a resounding Senate confirmation. Who would be willing to sacrifice good name and credibility for such a losing cause? It would have to be a true believer. Someone who would do anything to help the cause. A person who hated Sotomayor. Where could anyone like that be found? And so all heads in the room turned to Karen Lee Torre, who, for a brief and shining moment, would be star, a martyr to the cause.
But Adam Liptak, quietly, in the way that a journalist lawyer tries to sneak in an idea so that it’s available for anyone who chooses to see it, plucked this exchange out of the 2d Circuit oral argument to show just what an awful job Torre did in arguing the case.
[Judge Sotomayor’s] extensive and probing questions at the argument were typical of her methodical approach to cases, and they offer sometimes conflicting hints about her views on when the government may take account of race in decisions concerning hiring and promotion.
At times, her questions were small lectures on the governing legal standards.
Judges often give “small lectures” when lawyers make arguments that demonstrate their lack of understanding of the legal standards. It’s not to talk down to counsel, but to assist them when they appear for argument without being prepared, knowledgeable or, perhaps, competent. It’s like a cue to the lawyer to cut the crap and start dealing with the case like a lawyer. Good lawyers take the cue. Bad lawyers resist, insisting that they know better.
Karen Lee Torre suffers from a disability. She’s blind. And it has nothing to do with her eyesight. Her affliction prevented her from seeing how bad her argument was before the 2d Circuit. Her limitations precluded her from recognizing that she lost all credibility, assuming she had any to begin with, with her appeal to fear. No judge on that panel forced Torre to take such an absurd tact.
A decision will issue from the Supreme Court on Ricci sometime soon, and it may well reverse the circuit decision. On the one hand, Sonia Sotomayor will not be one of the judges deciding, her absence being one difference. On the other hand, Karen Lee Torre was not the lawyer arguing the cause for Frank Ricci and 17 other firefighter applicants, being another difference. If one was to chose between one out of a gaggle of judges or the lawyer arguing for the party as being more critical to outcome, the key becomes clear.
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Scott: OK with you if I link back comment on my blog to this post?
Be my guest,
LukeLibertarian Advocate.Scott,
I really enjoy your site, but I don’t see the need to publicly make ad hominem attacks against this woman, especially when your blog is so popular. I don’t know her politics, but I listened to the oral arguments and though she was spot on with the law. And I don’t see how her comment about saving lives is irrelevant. I have seen the types of questions asked in the firefighter tests. The questions are relevant. Those who score higher have more knowledge about firefighting. Having the most knowledgeable firefighters can save lives. (Wise firefighters are just as important as wise latina judges.)
But we shall see. I am confident the Supreme Court will reverse.
Great. Now you are insulting dogs and blind guys. Yeah, Yeah, I read the disclaimer.
I understand why the comment about saving lives is irrelevant. I am also capable of linear thought.
If you are nice to the blind guy, maybe he’ll explain it to you. If you’re very nice, maybe he’ll use small words. As for your opinion, both as to the post and oral argument, it’s consquence is limited by your inability to grasp why her argument was so fundamentally wrong.
I apologized to the dogs. You, I can run faster than.
I’m a bit disappointed with your response for many reasons. You may be right, you may be wrong, but your tone is most certainly wrong.
And I am glad you think your conclusions are so solid that no reasoning is necessary. But a simple “because” and few words could have explained why her statement was so absurd. Is it that you do not believe that the test save lives, or is it that you think it is immaterial regardless? Perhaps you believe her proposition (that choosing the highest scorers saves lives) is ridiculous. Perhaps you believe it is immaterial to the Title VII claim. Perhaps you believe that it is irrelevant to whether the “challenged practice is job related for the position in question and consistent with business necessity.” If so, say so. The point is, I do not know why.
Perhaps it has something to do with SS’s remark, which you seem to think was a scathing rebuttal. But was it?
QUOTE
“Firefighters die every week in this country,” the lawyer, Karen Lee Torre said. Using the test, she said, could save lives.
“Counsel,” Judge Sotomayor responded, “we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?”
END QUOTE
So firefighters are either qualified or unqualified? This is treating them as commodities: if you are qualified, you are equal to everyone else that is qualified. I disagree. There are levels of qualified. And in addition to losing lives because of unqualified persons, you may also save more lives because of extra-qualified persons. And if you are not saving as many lives as you would have, it is tantamount to losing them.
Many readers are not on the same page as you. Some readers are not lawyers; some have no experience with Title VII; and perhaps some are just a little slow and need you to connect the dots. So you should explain yourself. Additionally, many readers, including I, were not fortunate enough to go to New York Law (snicker), so please spare me the conclusory posts and the petty insults. (I just threw that sentence in there so you could see how silly an insulting comment looks.)
Anyway, in addition to your lack of reasoning, it is a shame that you insult the attorney because you don’t like her politics and then you insult a commenter because you did not like his comment. But it’s a free country, and it’s your blog — your own little bully pulpit. But I for one will no longer read it.
Yours etc.,
Mike
P.S. You really should check out the questions to firefighter exams. The knowledge tested on those exams is most certainly relevant.
Nice of you to tell me how I should be doing things here, but unfortunately it’s neither your call nor choice. You have only one option, which you have wisely chosen. Bye.
Did Scott hurt your little feelings cause he wasn’t nice to you? Aw, poor baby. You need to find a nice blog where some little boy like you will be admired and respected. Just get the hell away from here so I don’t waste my time reading anymore of your whiny crap.
Martin,
I suspect that our dearly departed friend Mike, who has never before posted a comment, is a shill for the cause trying to engage in an argument with me designed to blunt my criticism of Karen Lee and the silliness of the neo-cons using Ricci as wedge against Sotomayor. The basic hope is to appeal to the ignorant who can’t understand why the argument was so ridiculous, who are used to blatant fearmongering as a substitute for logic.
Notice some details. Mike comments anonymously. Mike starts with the “I like your site” nonsense, which is common amongst spammers, in order to try to make me kindly disposed toward him. He claims to have been at the argument and opines that Karen Lee was “spot on” as if his vote counted, and suggests that he has some inside poop on the test, none of which is credible or provable. It had the stink of set up, and when he didn’t get me to engage with him, and instead called him what he was, he ran away (disappointed in my tone).
The attacks on Sotomayor are far more choreographed than most would imagine, and this was just an attempt to further the attack and defend the honor of Karen Lee. Pure, unadulterated crap.
I didn’t think of that but now that you mention it, it makes sense. He does smell like a rat.
Scott,
Big fan of the blog but occasionally your posts descend to the skill I would expect from an 11th grader. In this case you resort to ad hominem attacks and calling the lady a neo-con. It appears you have no idea what a neo-con even is. I would suggest you google the term “neocon” and educate yourself on this matter.
Donald
Donald,
If you want to be effective in trying to blunt the criticism of Karen Lee, you’re going to have to do a lot better than going around with the same sort of comments as your federalist society pal Mike above. Try something novel, thoughtful, interesting, different. You’re not passing the smell test any better than Mike did. For crying out loud man, at least try to use different language if you want to come off with any credibility at all. Disagree as I might with the neo-cons, at least I thought you guys put a decent effort into your spin. This effort was just pathetic.
I wouldn’t know Karen Lee Torre if I passed her on the street and have no opinion on her as an advocate, but she has to be smiling today.
I think I’ll stop by Pattis’s page to offer congratulations.