Ricci v. DeStefano: A Victory for Merit Over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.

[Cross-posted on Cato's blog.]

Mourning the Loss of a Great American Capitalist

While the big news of the day wouldn’t seem to have a public policy angle, Michael Jackson’s death allows us to remember that such phenomenal career achievements can only be possible in an economic system that rewards and harnesses talent.

The King of Pop’s creativity allowed him and his family to make hundreds of millions of dollars, yes, but it also created thousands of jobs in the music and marketing industries and brought joy to fans around the world. Whatever his personal eccentricities — perhaps, in part, as a result of them — Jackson represents a capitalist success story.

No central planner could have invented him, and no government bureaucracy could have transformed pop music in the way he did.

[Cross-posted at Cato's blog.]

"Sweet" Victory in Oregon

As a follow-up to Jason Kuznicki’s post from January, I am pleased to report that yesterday Oregon Governor Ted Kulongoski signed HB 2817—a bill that eliminates the cartelization of the moving business in the Beaver state.

The old law required the Oregon Department of Transportation to notify existing moving companies of businesses that wanted to enter into their market. What’s more, those companies were given a veto over the would-be market entrants thereby locking out all competition to maintain artificially high prices—all with the government’s help.

The owner of a new moving company, Adam Sweet, enlisted the help of Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur to litigate against the old law. That lawsuit, once it cleared challenges for dismissal, prompted several pieces of legislation that culminated into the bill that the governor signed yesterday.

Congratulations to Mr. Sweet, Tim, and PLF for their well-fought victory for economic liberty for the entrepreneurs and consumers of Oregon!

More details from PLF here.

[Cross-posted at Cato's blog.]

A Victory for Judicial Minimalism But Not Good Public Policy

In the case of Northwest Austin Municipal District Number One (“NAMUDNO”) v. Holder, the Supreme Court issued a narrow decision today that avoided ruling on the constitutionality of Section 5 of the Voting Rights Act.

Section 5 requires any change in election administration in certain states and counties—mostly but not exclusively in the South—to be “precleared” by the Department of Justice in Washington. As I wrote earlier, this is a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.

The ruling correctly allows a small utility district (and other political subdivisions) to seek relief—known as a “bailout”—from the 1965 Voting Rights Act’s onerous pre-clearance requirements. There is simply no reason for jurisdictions that have, at worst, gone decades without any voter intimidation or disenfranchisement—where the Act succeeded in stamping out or preventing racial discrimination—to continue to go before the Department of Justice for the most innocuous changes in state and municipal election procedures.

Here, for example, an electoral district that wasn’t even created until 1987 wants to move its polling locations from private garages to public schools, for ease of voting. Since Congress amended the Act in 1982, only 17 of 12,000 covered jurisdictions have been able to come out from under the thumb of federal oversight. Congress clearly never intended it to be so difficult to escape having to seek federal approval for such minor changes in election procedure.

This is one “bailout” that actually saves taxpayer money and makes common sense.

Unfortunately, the constitutionality of the Act’s Section 5—in the absence of the “exceptional conditions” the Court cited in 1966 as justifying “extraordinary legislation otherwise unfamiliar to our federal system”—remains in doubt. While it is a close call whether the Court need resolve that issue to dispose of NAMUDNO, Section 5’s validity as a matter of constitutional law and public policy is assuredly not a close call.

As Chief Justice Roberts notes in his majority opinion: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”

Indeed, blatantly discriminatory evasions of federal decrees are exceedingly rare. Minority candidates run for and hold office at unprecedented rates—particularly in the South. The racial gap in voter registration—the primary concern of the VRA—is higher nationwide than it is in the covered states; in some covered states, blacks register and vote at higher rates than whites.

As Justice Thomas says in his partial dissent: “Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgement of victory.”

[Cross-posted from Cato's blog.]

Response to My Comments About Sotomayor

As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns — and quite thoughtfully at that — so I thought I would share this exchange with a reader who emailed me his comments:

I read your piece “Sotomayor Pick Not Based on Merit”, where you
write, “in over 10 years on the Second Circuit, she has not issued any important
decisions”.

Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and,
as a whole, pretty non-ideological.

In reviewing this list, I found myself disagreeing with her here and there,
but I couldn’t find something that really irked me. Can you?

According to the authors, “Since joining the Second Circuit in 1998,
Sotomayor has authored over 150 opinions, addressing a wide range of issues, in
civil cases.” And that “To date, two of these decisions have been overturned by
the Supreme Court; a third is under review and likely to be reversed.” 2 out of
over 150, is not a bad record at all.

You also write that she’s “far less qualified for a seat on the Supreme
Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena
Kagan.”

I did a bit of research on them, and I’m not sure why you reached that
conclusion. They are all qualified, in some respects Wood and Kagan are a bit
more impressive, but you give the impression that she’s not highly qualified,
and I don’t see evidence for that. On the contrary, she seems highly qualified -
she has a long judicial and academic record, she has dealt with a myriad of
issues, and has authored a vast amount of rulings, which, as far as I’ve seen,
don’t appear to be ideological or particularly “activist.” She strikes me as
someone balanced and sensible, with a slight tilt to the left.

You also write, “this does not a mean that Sotomayor is unqualified to be a
judge — or less qualified to be a Supreme Court justice than, say, Harriet
Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly
unqualified. She’s hardly intellectually impressive in any way, to put it
mildly, and nothing about her record was impressive or even remotely suggesting
she’s qualified to serve as a Justice. She was basically a manager of a law
firm, with zero qualifications to serve as a SC justice. By even mentioning her
name while discussing Sotomayor, you’re giving the impression there’s an analogy
there, where there’s really none. Sotomayor is light-years ahead of Miers. You
can’t be serious.

You also make a big issue over Ricci v. DeStefano. Well, I
personally would side with the firemen, and it’s unfortunate that Sotomayor
hasn’t, but to be fair, she hasn’t even written a decision about that.We don’t
know what her reasoning was. She merely signed, along with the rest of the
panel, to uphold the lower court’s decision. It’s hard to build an entire case
against her based on something like that. She has written over 150 other
decisions, why not focus on them? Why pick one, that doesn’t even have any
arguments in it, and make it the central issue, when there are over 150 reasoned
decisions to analyze?Why not review them, and give the public a deeper
assessment, rather than focusing on ONE, which doesn’t even have any arguments
or reasoning in it?

I’m generally a Cato fan, I get the mailings every day, I’m a moderate
libertarian by philosophy, I’m just not sure why Cato is opposing her
nomination. I like to think of Cato as non-partisan, just as I am, but on this
issue your and Pilon’s opposition/criticism smacks from political partisanship
and is not based on the evidence. So it seems to me.

Here is my response:

Thanks for writing and for the thoughtful comments. A few points:

1. My argument is explicitly NOT that her opinions are disagreeable. I’ve
waded through a fair number and read every public report on them produced thus
far (including the very helpful SCOTUSblog summary you cite). Like you, some I
agree with — most, actually, because most cases at this intermediate appellate
level are not controversial (legally or politically), even if complex — some I
don’t. But there’s just not much “there” there — intellectual depth, scholarly
merit, etc. — at least by the elevated standards for elevation to the Supreme
Court and in comparison to more accomplished jurists like Wood and Garland.
She’s a competent judge, but we have 500 of those in the federal judiciary
alone. (And none of this is to disparage her tremendous personal story; I write
this from Princeton, where she had a truly impressive four years.)

2. Her reversal rate (I think there are six cases now) is a non-issue. The
Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of
cases it is asked to review. So, statistically, we can say nothing about
Sotomayor in that sense. A couple of her reversals are a bit strange, but on
technical issues that, again, don’t lend much to the overall debate.

3. Yes, she’s much more qualified than Miers (though it’s a little unfair
to say Miers was a mere “law firm manager” — she was White House counsel and
apparently a decent lawyer in private practice). I threw that line in
there to show I can pick on Republican nominees too.

4. While Roger has discussed suspicions of Sotomayor’s activism or
radicalness — and I think it’s clear she has more of those tendencies than Wood
or Kagan — this is not the thrust of the my CNN commentary. We just can’t tell
from her opinions, which are all over the map — other than the speeches at
Berkeley and Duke and then the Ricci case.

5. Ricci is important for two reasons: a) on the merits, the
decision is blatant racial discrimination — and the Supreme Court looks likely
to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to
grapple with the complex constitutional and statutory issues is a serious
dereliction of judicial duty — as pointed out by Jose Cabranes in his dissent
from denial of en banc rehearing. Regardless of the merits of the case, the way
it was handled — as a per curiam summary affirmance released late on a Friday,
meant to sweep the case under the rug — is outrageous. Sotomayor was 100%
complicit in that.

6. In no way are my (or Roger’s) comments partisan. Cato’s interest here
isn’t in any particular personality but rather: 1) that official appointments be
made irrespective of racial/ethnic/identity politics, and 2) even more
importantly, that the Supreme Court interpret the Constitution in a way that
treats the judicial enterprise not as one of enforcing social justice or
otherwise rewriting the law it when a result is inconvenient. The talk of
“empathy” is disturbing precisely because it is the antithesis of the rule of
law. And this is why Republican Judiciary Committee members must generate a
public debate on judicial philosophy and not merely attempt to tear down this
nominee. If they don’t demand substantive answers on serious constitutional
questions, they will be complicit in the deterioration of our confirmation
processes.

I look forward to following and commenting further as the confirmation process plays itself out.

[Cross-posted from Cato's blog.]