The U.S. Supreme Court on Monday overturned the decision of the 2nd Court of Appeals in the Ricci v. DeStefano case. The case was decided by one vote, with Justice Anthony Kennedy siding with Roberts, Alito, Scalia and Thomas in the majority. That decision overturned an earlier one in which Judge Sonya Sotomayor, President Obama’s nominee for the court, sided with the majority.
The case is unique in that a nominee’s decision has been overturned right before her confirmation hearings begin. Some speculate that the case presents a new obstacle for Sotomayor in her quest for confirmation.
My thoughts are it doesn’t amount to a hill of beans. Sotomayor’s proclivities are known. It isn’t as if this decision enlightened us to anything we didn’t know before.
But the time is propitious as it presents us a classic example of how divided the court is. In a nation that increasingly relies on Washington to make decisions for us, more often than not our futures are contingent upon the whims of strangers. The opinion of one man, Justice Kennedy, directly affected the careers of dozens of firefighters in New Haven, Conn., and millions of other unknown persons around the nation.
And those decisions do matter to real people. I became a lawyer because I lived through the experience of my father suing a large corporation for age discrimination. My life changed forever because of one vote made by a member of the 8th Circuit Court of Appeals in an unpublished decision.
One decision from an unelected person in a lifetime appointment. One decision from an unelected person. So goes the fate of a family and an entire nation. It is no wonder groups sprout up all over the country to support or oppose a nominee and that presidents create litmus tests for potential nominees (as illustrated by the web ad above). It is also no wonder why Thomas Jefferson believed the federal judiciary presented a threat to the nation.
As it stands today, Sotomayor will be appointed. It is a fait accompli. No filibusters, no dramatics. The Republicans fumbled her nomination coming out of the gate and lost the fight before it began.
I wager both Arkansas senators, Mark Pryor and Blanche Lincoln, will vote for her. Senators are not usually held responsible for the decisions that justices make, in part, because the decisions are slow coming and often arrive decades after a senator leaves office. (Kennedy was nominated by Ronald Reagan.) Most people are hard pressed to name their senators, much less how they voted on Supreme Court nominees.
But right here, right now, it matters. A lot of Arkansans are looking at this case and are identifying with these firefighters. They see that New Haven followed guidelines to avoid unintentional discrimination, hired an outside company that specialized in creating and administering fair and impartial exams that interviewed and consulted African-American supervisors to make the test culturally neutral.
A lot of folks see that the city of New Haven took steps to ensure equality but when it turned out no African Americans qualified high enough to receive immediate promotions, regardless of the efforts of the city, the city threw the results out because they did not achieve the racial balance that they wanted and because civil rights leaders were threatening legal action. And these firefighters lost their promotions and the city has lost talent as no new supervisors have been promoted since the litigation started in 2003.
On the other side, many people agree with Justice Ruth Bader Ginsberg, who stated that the city had cause for concern because of entrenched racism in the department and that the majority ignores the reality of the situation. My guess is the folks that agree with Ginsberg wouldn’t vote for a Republican for love nor money.
Republicans are going to bet more Arkansans agree with Kennedy than Ginsberg. The case will be fresh enough to use by Lincoln’s opponent. But it will only be a talking point, it won’t make or break a campaign. It will be one of dozens of issues that will be used to try and bring her down. It will be used to show Blanche Lincoln follows the more liberal elements of her party enough that she is out of step with the average Arkansans.
Ricci isn’t a game changer. It is one more straw that will be piled on the camel’s back. Meanwhile, in the real world, people are living with these decisions and Thomas Jefferson is rolling over in his grave.
Cory Allen Cox is an attorney practicing law in Little Rock. He was previously legal counsel for Gov. Mike Huckabee and director of the Criminal Investigation Division of the Arkansas Insurance Department. He was choosen as one of Arkansas Business’ Forty Under Forty in 2008. His legal practice focuses on insurance defense, government regulation and commercial transactions.