A remarkable opinion last week by highly regarded Second Circuit judge (and Clinton appointee) José Cabranes exposes some apparent shenanigans by three members of a Second Circuit panel and a district judge. Cabranes’s opinion, joined by five of his colleagues (including Chief Judge Jacobs), dissented from his court’s narrow 7-6 denial of en banc rehearing in Ricci v. DeStefano.
In Ricci, 19 white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. As Cabranes puts it, “this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”
The district judge, Janet Bond Arterton, issued a 48-page summary-judgment order ruling against the firefighters. Summarizing Arterton’s opinion, Cabranes clearly finds highly unusual that Arterton could grant summary judgment for the city officials notwithstanding her acknowledgement that the evidence was sufficient to enable a jury to find that the city officials “were motivated by a concern that too many whites and not enough minorities would be promoted.” Further, Cabranes finds it remarkable that such a “path-breaking opinion” was “nevertheless unpublished.”
On appeal, Cabranes’s account suggests, the judicial effort to bury the firefighters’ claims got worse. In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel, consisting of Clinton appointees Rosemary Pooler, Robert Sack, and Sonia Sotomayor, “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about. Four months later, just three days before Cabranes issued his opinion (and in an apparent attempt to preempt it), “the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.” As Cabranes sums it up:
This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.
And then this killer understatement:
This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.
Cabranes and his five colleagues clearly believe that the panel members—Pooler, Sack, and Sotomayor—acted as they did in order to prevent en banc or Supreme Court review of the firefighters’ claims. [Note: I amended the foregoing sentence on 6/17 to add the en banc point.] Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”
It’s worth noting that the highly controversial—but not highly regarded—Sotomayor is mentioned often as a likely Supreme Court pick in an Obama administration, largely because she is Hispanic and partly because it is thought that the fact that she was nominated to the district court by President George H.W. Bush (as part of a broader deal with Senate Democrats—see point 1 here) may provide useful camouflage.
(Cabranes’s opinion begins on the ninth page of this Second Circuit order. An opinion that responds to parts of Cabranes’s opinion (and that is joined by, among others, Pooler, Sack, and Sotomayor) begins on the third page.)