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Judge Sonia Sotomayor Confirmation: What You Can Do

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On May 27 Workplace Fairness interns Hannah Goitein, Jessica Haden, Shannon Lichtenberg, and I participated in a conference call with The Coalition for Constitutional Values. This national coalition of organizations represents millions of Americans from across the country who believe it is important that the American people be informed about the nomination of Judge Sonia Sotomayor to replace Justice David Souter. The coalition is co-chaired by the Leadership Conference on Civil Rights, Alliance for Justice, and People For the American Way.

Featured speakers on the call included Tina Tchen, White House office of public engagement director; Janet Murguia, National Council of La Raza president & CEO; Bill Yeomans, Alliance for Justice legal director; Marge Baker, People For the American Way director of public policy; Wade Henderson, Leadership Conference on Civil Rights president & CEO; and Ellen Buchman, Leadership Conference on Civil Rights vice president for field operations.

On the call, we discussed how Judge Sotomayor’s distinct and impressive qualifications make her an exemplary Supreme Court nominee to the nation’s high court. We reviewed the process from nomination to confirmation, and shared information about what you and your organization can do to get involved in the process.

Here are four things you can do right now to ensure an expedient and fair confirmation process and engage others in support of Sotomayor:

1)  Call Your Senators. Urge them to support an orderly and fair confirmation process of Judge Sonia Sotomayor to the U.S. Supreme Court:


2)  Watch the “Justice” Ad and Go Viral. The Coalition for Constitutional Values has a new 30-second television ad to introduce Judge Sonia Sotomayor. The ad highlights her fair-minded approach to the law, which is grounded both in her eminent legal qualifications and her life experiences. Watch the ad, email it to five friends, post it on Facebook, or add it to your website:


3) Sign the Pledge. Support constitutional values through the nomination and confirmation of this superb candidate. Pledge to support the Coalition for Constitutional Values and learn more about Judge Sonia Sotomayor and how you can get involved by joining the coalition:


4) Read Up on Sotomayor. Check out the Alliance for Justice Preliminary Report on the nomination of Judge Sonia Sotomayor to the Supreme Court:


Together we can make sure Justice Sotomayor is swiftly approved to become our next Supreme Court Justice.

About the Author: Paula Brantner is Executive Director of Workplace Fairness, which hosts the Today’s Workplace blog, and has worked as an attorney in the area of employment discrimination and civil rights law for over 16 years. Workplace Fairness is a nonprofit organization that provides information, education and assistance to individual workers and their advocates nationwide and promotes public policies that advance employee rights.

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Is Sotomayor a Reverse Racist?: Testing the Limits of Tests

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Supreme Court nominee Judge Sonia Sotomayor is taking heat for being a member of the three-judge panel in Ricci v. DeStefano, a case filed by seventeen white firefighters and one Latino firefighter who were the top-scorers on a multiple-choice firefighter exam.  The case is currently under consideration by the U.S. Supreme Court and has prompted conservatives like Rush Limbaugh and Ann Coulter to label Judge Sotomayor as a “reverse racist.” 

But, there is good reason to believe that the white and Latino firefighters who sued were not the most qualified for promotion.  In reality, the issue in Ricci is not reverse discrimination against better-qualified white candidates.  It is a question central to the lives of every American, of every race — “Is the person with the highest multiple-choice test score necessarily the most qualified?”

So, in contrast to the typical reverse discrimination case, it is the qualifications of those who filed the lawsuit that are in question. The Ricci oral argument suggests that the justices are likely to split along familiar 5-4 ideological lines, with Justice Anthony M. Kennedy as the deciding vote. What has not been made clear in media reports about the case is how different it is from situations where less-qualified minorities benefited from racial preferences.

The reality is that several minority firefighters performed very well on the firefighter exam. Out of more than 100 candidates competing for the seven vacant captain positions and eight open lieutenant positions, Latino firefighters ranked in seventh, eighth and 13th place on the captain list and African American firefighters ranked in 14th, 15th, and 16th place on the lieutenant list. But because of a rule requiring promotions to be doled out in strict rank order, all eight of the lieutenant positions would definitely have gone to whites, who ranked first through 10th on the list, and six of the seven captain positions were likely to go to whites, as well, because they ranked first through sixth.

This is what put New Haven officials between a rock and a hard place or, as Justice David H. Souter said from the bench during oral argument last month, in a “damned-if-you-do-damned-if-you-don’t situation”. The city’s attorney told officials they could be sued by the high-scoring African American and Latino test-takers for violating federal civil rights laws unless they had scientific evidence to show that the white candidates were truly more qualified than the minorities who would be passed over for promotion.  This and other comments made by Justice Souter, the justice whom Judge Sotomayor has been nominated to replace, signal that he, like Sotomayor, views New Haven’s actions as constitutionally valid.  

As a legal matter, employers are prohibited from using tests that have an unjustified racially “discriminatory effect.” It is undisputed that if the list had been certified by city officials, the 2003 promotions would have been so disproportionately white it would have violated federal employment discrimination guidelines. When an employer selects one racial group at higher rates than other racial groups in violation of these guidelines, known as “the four-fifths rule,” members of the adversely affected group have grounds to sue in federal court for race discrimination.

In this case, if minority firefighters had filed a lawsuit, the burden would fall on the city of New Haven to present a scientific justification that the whites who were selected are better qualified than the minority applicants who were not promoted.

Like all standardized tests, the New Haven firefighter multiple-choice test was neither all-powerful nor perfectly precise. The reality is that there is not a clear scientific basis for concluding that the 17 white candidates and one Latino candidate, who were ranked at the top of the lists, were more qualified than the African American and Latino officers who had high scores on the test but ranked slightly lower. As a group of employment testing experts has explained in their own brief to the Supreme Court, the city of New Haven could not prove that ranking in the top-10 of over 70 test-takers means you are truly more qualified than someone who ranked in the top-15.

First, the city did not have a good scientific basis for the amount of weight it placed on the multiple-choice test — 60 percent of a firefighter’s rank on the list. In a neighboring city, Bridgeport, Conn., the fire department only gave the multiple-choice test a 30 percent weighting.

Second, using the lieutenant list as an example, we cannot be certain that the top-10 firefighters (all of whom were white) were more qualified than the top-15 firefighters (two of whom were African American) because the company that made the New Haven firefighter test has admitted that the exam does not measure important skills for the job in question. In fact, it is undisputed that the New Haven firefighter exam was not designed to measure command performance or supervisory skills.

As explained in the Supreme Court brief filed by the employment testing experts, one of the important qualities distinguishing a good fire officer from a good entry-level firefighter is that supervisory officers must have a “steady presence of command so that the unit will follow orders and respond correctly to fire conditions.” Firefighters need “command presence” in order to lead their command units in safely and effectively fighting fires.

Finally, New Haven had reason to believe it might lose a lawsuit filed by minority firefighters because there were less racially discriminatory tests available to identify the firefighters most qualified for promotion. For instance, employment testing experts have found that “assessment centers” — facilities that test firefighters using standardized job-simulation exercises — do a better job than multiple-choice tests of weeding out firefighters who are “book smart, but street dumb.” These centers compare entry-level firefighters based on their ability to do real-world tasks that are typically performed by a firefighter “on the job” instead of comparing how well they answer questions about firefighting on a pencil-and-paper multiple-choice test.

In fact, there is every reason to believe that the firefighters who filed the Ricci lawsuit would not have ranked in the same position on the list had New Haven evaluated firefighters at an assessment center.  In addition to resulting in fewer racial differences in test scores, research shows that the white firefighters who perform best on multiple-choice tests do not always fare as well on tests at assessment centers that simulate real-world firefighting tasks.  In other words, using test scores from assessment centers leads to both to the promotion of greater numbers of minority firefighters and results in the promotion of different, more qualified white firefighters.

Thus, there is a strong argument that promoting firefighters based on their performance in job simulations increases more than racial diversity in the upper ranks of fire departments. It increases public safety.

In most cases challenging standardized testing, the issue is whether test scores were used properly. Here, instead of claiming that the city used a test improperly, firefighters are suing a city for putting a stop to its own improper use of a standardized test. Even in our increasingly test-centered society, this is a striking claim. The city was right to put a halt on promotions because there is no proof that those at the top of the list were more qualified than those firefighters ranked just below them.

About the Author: Kimberly West-Faulcon is a constitutional law professor at Loyola Law School, Los Angeles. Her most recent research on the legal implications of the psychometric properties of standardized tests, “The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws,” appears in the current volume of the University of Pennsylvania Law Review.

A version of this op-ed originally appeared in the Los Angeles Daily Journal on May 13, 2009. Reprinted with permission by the author.

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The Case Against the Case Against the Sonia Sotomayor Nomination

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Sonia Sotomayor’s performance as a federal judge had already been criticized in some quarters even before President Barack Obama on Tuesday nominated her to the Supreme Court. These critiques come in three flavors: first, that her decisions show she just isn’t a very good judge; second, that Obama improperly relied on diversity to make an “affirmative action” choice; and third, that she is too intemperate for the job. The bases for these criticisms are thin, persuasive only to the many commentators and senators already inclined to oppose any Obama nominee.

The first line of attack, on Sotomayor’s rulings, does have some very recent ammo: Ricci v. DiStefano, a case the Supreme Court should decide just days or weeks from now. In Ricci, Sotomayor was part of a unanimous three-judge panel that allowed the New Haven Fire Department to jettison the results of a promotion test that resulted in a disproportionate number of whites receiving top scores.

Critics say Sotomayor ruled to allow blatant reverse discrimination, but the reality was more complex for the poor City of New Haven, Conn., which faced competing demands under federal law: (a) avoid discriminating by race, including against whites and also (b) consciously undertake efforts to eliminate even well-intended job tests that have a “disparate impact” on racial minorities, unless the test is a provable “business necessity.” Each is a clear textual command of federal law, and each crashes headlong into each other, making it certain that some judges would rule one way while others rule the opposite.

Whichever way the Supreme Court rules, the decision seems unlikely to be unanimous (most of the recent affirmative action and reverse discrimination cases were 5-4 votes), but that doesn’t mean either side is “bad at judging.” The difference of opinion means only that among skilled judges there is a philosophical difference on a difficult legal question, one we already knew: the current Supreme Court majority (Justices Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito and Anthony Kennedy) is more aggressive about policing “reverse discrimination” against whites, while a current Supreme Court minority (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) and many lower-court judges (such as Sotomayor) do not see any impermissible “reverse discrimination” in applying the rule against allowing most tests that effectively screen out racial minorities.

A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).

In the 2001 opinion, Sotomayor led a unanimous appellate panel in reversing the pretrial dismissal of a female police officer’s claims of discrimination, retaliation, and a hostile work environment. Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country — a more scholarly effort than typically is necessary for a decision on an individual New York police officer’s individual claim. Agree or disagree with her on contentious issues like discrimination law, Sotomayor is a thoughtful, scholarly judge whose work holds up with the best of them.

The second line of attack, on Sotomayor as an “affirmative action” choice, implies that Obama sacrificed merit selection in favor of diversity selection. But Sotomayor’s resume qualifications are unimpeachable: 17 years as a federal judge, at both the trial and appellate levels (unlike the nine current justices, whose only judging experience has been on appeals, not trials); impeccable academic credentials (graduating summa cum laude from Princeton University and, then, from Yale Law School, where she was an editor of the school’s most prestigious academic publication, the Yale Law Journal); and varied legal practice experience (she was a criminal prosecutor in Manhattan and then a civil litigator, eventually specializing in intellectual property work).

Still, even the best resume gets you only on a long list of similarly qualified candidates — just ask federal appellate judges J. Harvie Wilkinson, Edith Jones, J. Michael Luttig, Emilio Garza or any of the other impressive Republican Supreme Court candidates whom President George W. Bush passed over in 2005 in favor of then-federal appellate judges Roberts and Alito.

Admittedly, among the list of qualified candidates, Sotomayor was especially appealing because of the diversity she would bring to the court — not just a women to join a currently almost all-male court, and not just the first Hispanic justice, but also an individual who came from humble beginnings. Her mother, a nurse, raised her in the South Bronx after her father passed away in her youth.

The Supreme Court is the least diverse branch of the federal government, in part because due to its low turnover (only one opening every four years or so) and age of its nominees (most nominees are in their 50s), the current Supreme Court largely reflects the pool of 50-something lawyers in the 1980s and 1990s, which in turn reflects the pool of those attending law school in the 1960s — for historical reasons, not the most diverse crowd.

With the Supreme Court, a critical institution that lags the rest of the government (and private industry) in diversity and that is impossible to diversify immediately, Democratic and Republican nominations alike have considered diversity, even of the purely race-and-gender sort — contrary to the “affirmative action is for liberals” folklore. For his first Supreme Court nomination, in 1981, President Ronald Reagan, having promised to appoint the first female justice, picked Sandra Day O’Connor, who turned out to be the most powerful justice of the 1990s and early 2000s despite a light record of prior accomplishment; O’Connor had been a state legislator and state lower court judge, a far cry from Sotomayor’s resume.

A decade later, in 1991 President George H.W. Bush famously declared “the best-qualified person” for the Supreme Court to be Thomas, who at the time had barely a year of judicial experience and was the youngest court nominee in decades — but who just happened to be an African-American Republican available to replace the retiring Thurgood Marshall, the Supreme Court’s only African-American Justice.

President George W. Bush’s ill-fated nomination of Harriet Miers came after he demanded that staffers specifically provide him female names for potential nominees, according to recent published reports.

So the likely “affirmative action” attacks on the Sotomayor nomination miss the mark, both in their insinuation that she lacks impressive qualifications and in their implication that only liberal Democrats consider diversity relevant to a high court as important as it is non-diverse. Someday, the Supreme Court will be diverse enough that presidents will face less such pressure — but the current court of seven white men, one African-American man, and one white woman isn’t quite there yet.

The third criticism of Sotomayor — that she is an intemperate bully — derives largely from a collection of anonymous quotations in the Almanac of the Federal Judiciary. These reviews, submitted by practicing lawyers, are not pretty: “She is a terror on the bench.” “She is very outspoken.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out-of-control manner. She makes inappropriate outbursts.”

Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being “very outspoken”? Do Sotomayor’s critics see it as a bad thing that Scalia frequently is “overly aggressive” on the bench and in his notoriously entertaining public speeches?

Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a “bully” or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary — that male judges are more likely to be aggressive, whether in proper or improper ways.)

While my small-number statistics don’t qualify as an official empirical study, anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men.

The attacks on Sotomayor’s aggressiveness miss the mark for a more fundamental reason, though. “Judicial temperament” is critical for trial judges dealing with human drama — witnesses reliving traumatic events, emotionally charged evidence, and lawyers’ arguments that tug on jurors’ heartstrings.

But as any practicing lawyer can tell you, appellate litigation is a typically dry affair, vastly different from trials. In appeals, parties and witnesses do not testify, and the lawyer does not issue impassioned hand-over-heart pleas. The vast majority of an appellate lawyer’s work is the solitary researching and writing of lengthy briefs analyzing language from judicial precedents, statutes and regulations. The in-court portion of an appeal is just a short argument on the briefs’ legal analysis, usually just 10 to 15 minutes, to a panel of judges. When a lawyer gets roughed up by a panel of appellate judges, usually the criticism is an impersonal, geeky debate about what amounts to legal minutiae, however important the case is.

Especially at the Supreme Court, appellate litigators tend to be grizzled pros who have been through it all — professional appellate litigators at the Department of Justice, and prestige appellate litigators at private firms, like Roberts in the late 1980s to early 2000s, who served in both of those kinds of appellate litigation jobs.

“Judicial temperament” is a good thing, but it matters mainly for the over 99 percent of judgeships in the country that are not at the United States Supreme Court, which handles only appeals, primarily by seasoned vets of the appellate bar.

The debate on the Sotomayor nomination will be fascinating to watch. The criticisms of her rulings could yield a productive public debate about how judges should decide cases, how the Constitution should be interpreted, and other matters fundamental to our constitutional democracy.

On the other hand, we could get distracted by sideshows: criticism of a Democratic “affirmative action” nomination or criticism of “judicial temperament” based on the exact sort of anonymous complaints about “aggressiveness” that women commonly receive. In short, the nomination could be a wonderful exercise in democracy, or it could be a train wreck of political demagoguery.

About the Author: Scott A. Moss is an associate professor at the University of Colorado Law School.

This article originally appeared in Politico on May 27, 2009. Reprinted with permission by the author.

Photo: AP


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