In the article, Richey highlighted this part of the oral argument:
The firefighters’ lawyer was urging the judges not to treat her clients as unskilled workers. “This is a command position in a first-responder agency,” she said, not garbage collectors. The safety of the firefighters and the community is at stake, the lawyer said. Sotomayor interrupted Torre and made an uncharacteristic advocate-like statement. “Counsel, we are not suggesting unqualified people be hired – the city is not suggesting that, all right.” It is unclear who the judge was referring to as “we.”
(Emphasis supplied.) Actually it is perfectly clear who Sotomayor is referring to - she is referring to the court. The continuation of the discussion makes this clear.
The judge then explained her point: “If your test is going to always put a certain group at the bottom of the pass rate so they are never, ever, going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try … to develop that?”
Sotomayor was referring to binding Second Circuit precedent on Title VII. Richey himself acknowledged this earlier in his article:
The Second Circuit, which covers New York, Vermont, and Connecticut, has three longstanding legal precedents on the books supporting the city’s position in the Ricci case.
Richey apparently did not understand what that meant. Indeed, Richey seems unfamiliar with the way oral arguments occur in appellate courts. Norah O'Donnell also seems ignorant of these proceedings as well. For example, would she call Chief Justice Roberts "an advocate?" His performance in the oral argument in Ricci was that of an advocate seeking to overturn long settled precedent on Title VII. But Chief Justice Roberts is a "moderate" and "modest" justice we are told. Of course this is false. Chief Justice Roberts is a brazen extreme conservative activist judge. In an earlier post, I wrote about Chief Justice Roberts' questioning at the oral argument in Ricci:
MR. KNEEDLER [Attorney for the United States]: [Y]our question had two parts of it. You said there are too many blacks or too many whites. That is not a permissible objective under our view. The employer's action has to be tied to a concern about a violation of the disparate impact of under Title VII.
CHIEF JUSTICE ROBERTS: That's the part I don't understand. What you're saying is that the department can engage in intentional discrimination to avoid concern that they will be sued under disparate impact. Why doesn't it work the other way around as well? Why don't they say, well, we've got to tolerate the disparate impact because otherwise, if we took steps to avoid it, we would be sued for intentional discrimination? This idea that there is this great dilemma -- I mean, it cuts both ways.
I wonder if Norah O'Donnell thinks that is "advocacy?" I wonder if Richey thinks that is appropriate "advocacy" by a Justice. But Chief Justice Roberts is a "modest" and "moderate" justice.
What about this?
CHIEF JUSTICE ROBERTS: Can I ask you to touch on the distinction between racial discrimination and race-conscious action? The actions that were taken in many of our cases, in Croson and Adarand, Parents Involved, Wygant, were obviously race-conscious actions; there was a reason that the governments in those cases were taking the action. It was because of what they saw as the impact on race. Yet we concluded that was racial discrimination. So what's the -- how do you draw the line between race-conscious that's permitted and racial discrimination that's not?
MR. MEADE: Well, two answers, Mr. Chief Justice. First of all, this race consciousness is race consciousness that's mandated by Federal law. This is not a discretionary decision by an employer.
Is Chief Justice Roberts "advocating" for overturning Griggs? What will Norah O'Donnell say? How about Richey? But Chief Justice Roberts is a "moderate" and "modest" justice.
How about this?
CHIEF JUSTICE ROBERTS: I guess it would go to how you construe the statute. It seems to me an odd argument to say that you can violate the Constitution because you have to comply with the statute.
MR. MEADE: Well[,] I would disagree. That would only be true if there were some doubt as to the constitutionality of the disparate impact provisions. But . . . this Court first articulated "disparate impact." Congress has reaffirmed that.
Does Norah O'Donnell think Chief Justice Roberts is "advocating" here? Does it "shock" her? How about Richey?
But Chief Justice Roberts is an "moderate" and "modest" justice. He would never "advocate" now would he?
Here's a suggestion for our ignorant Media - of you want to learn how our appellate courts make legal sausages, perhaps they could learn how the Supreme Court does it. Perhaps they could discover that Chief Justice Roberts is not really "moderate" and"modest," but instead an extreme, brazen and radical extreme conservative judicial activist. But of course he is a white man, so no worries I suppose.
Speaking for me only
