That’s the title of my new Confirmation Tales post, which wraps up my four-part series on Ricci v. DeStefano. The series, I’ll acknowledge, requires more careful attention from the reader than the typical Confirmation Tales post, but I think that you will find that your attention is rewarded. Here are some excerpts from the new post:
In July 2009, two weeks after the Supreme Court rendered its decision in Ricci v. DeStefano, the case was front and center at Sonia Sotomayor’s confirmation hearing. Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, badly mischaracterized Sotomayor’s role in the case, and Sotomayor embraced his mischaracterizations….
Senator Patrick Leahy, the Democratic chairman of the Judiciary Committee, used his first round of questioning to attempt to preempt any further attack on Sotomayor over Ricci. Leahy appears to have been unburdened in this endeavor by any scruples about getting things right….
Leahy’s contention that “binding precedent” dictated the Second Circuit panel’s decision in Ricci is flatly wrong. Sotomayor and her panel colleagues didn’t make that claim in their opinion, and the district-court ruling that they essentially adopted went no further than to claim (sloppily) that a previous circuit case holding was “quite relevant and instructive.”
It is appalling to see that Sotomayor, in responding to Leahy, embraced his mischaracterization of precedent….
You might charitably think that Sotomayor was contending only that the panel decision was consistent with circuit precedent—i.e., was a defensible extension of that precedent. But she immediately extinguished any integrity-salvaging ambiguity that might have existed:
Chairman LEAHY. But when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined the outcome you had to come up with. Is that correct?
Judge SOTOMAYOR. Absolutely.
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