Bench Memos

Sotomayor Dissembling on Ricci

I have to follow up on Ed’s earlier post about Sotomayor’s response to Cornyn on her attempt to bury the Ricci case. I do not think that it’s a minor matter. 

This goes to whether she is telling the truth today, and it goes to her integrity as a judge in her handling of the case a year ago.

What she said this morning is not what happened, and it is not the way things happen on the Second Circuit, or at the Supreme Court.

Here is what she said to Cornyn this morning:

SOTOMAYOR: Senator, I can’t speak to what brought this case to Judge Cabranes’ attention. I can say the following, however. When parties are dissatisfied with a panel decision, they can file a petition for rehearing en banc. And, in fact, that’s what happened in the Ricci case. . . .

Similarly, parties, when they’re dissatisfied with what a circuit has done, file petitions for certiorari, which is a request for the Supreme Court to review a case. And so the court looks at that as well. And so regardless of how a circuit decide a case, it’s not a question of hiding it from others.

With respect to the broader question that you’re raising, which is why do you do it by summary order or why do you do it in a published opinion or in a per curium, the question or the practice is that about 75 percent of circuit court decisions are decided by summary order, in part, because we can’t handle the volume of our work if we were writing long decisions in every case. But, more importantly, because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.

Several points to make here:

1.  The fact that about 75 percent of cases are disposed of by summary order has nothing to do with this;  those cases are all routine, run-of-the-mill cases like Social Security appeals that can be disposed of based upon law that is absolutely clear; they are not controversial cases raising unsettled questions of federal employment discrimination or constitutional law. It is absurd to act like this case falls into the summary-order category.

2.  The Supreme Court gets about 10,000 petitions for certiorari every year and hears fewer than 100 cases.  It usually grants cert petitions when an unsettled legal issue has been thoroughly dealt with and analyzed by the Circuit Courts of Appeal, and when there is a disagreement among them; surely the Judge knows that the Court she thinks she is about to join does not engage in error correction of the courts below.

3.  The Ricci plaintiffs did not file a petition for rehearing en banc; Judge Cabranes read about the case in the local newspaper and it is he who brought the whole matter back before the court’s attention.  

4.  It is not always true that the losing party files a petition for rehearing; and in the Second Circuit in particular, often people don’t bother because rehearing is almost never granted. It is granted exceedingly rarely, and usually only when the whole court already knows about a case of extreme importance and has been watching what the panel was doing, or where the government or amicus comes in and asks for rehearing.

5.  If you look at the docket sheet, you will see that the summary order did not come out immediately.  Usually, I recall from clerking there, summary orders come out right away. It is obvious even before oral argument, and when the clerks meet with their judges right after argument it is confirmed.

Here is what I conclude from this: There must have been an internal dispute about how to handle this case. They realized it was going to be very messy. It has been long known on the Second Circuit (and elsewhere) that Sotomayor was a likely Supreme Court nominee by a Democratic president. By last summer it was looking even more likely. Any disposition of the case that involved an airing of the disagreements on the merits or even dealt substantively with the issues at hand was likely to create problems for Sotomayor in her quest for the Supreme Court. And so to protect her viability as a Supreme Court nominee, the panel finally decided to bury the case with a summary order and just make it go away.

This procedural irregularity is what is most disturbing about this case. It is what Judge Cabranes was shocked by. It is what Adam Liptak of the New York Times described as “baffling.” It is what Stuart Taylor exposed in his National Journal story, “How Ricci Almost Disappeared.”

Putting aside the merits of the case, putting aside judicial philosophy, putting aside whether anybody got the law right or wrong: There is no good explanation as to why this happened, leaving me to conclude that parties who came before a court seeking justice were sacrificed on the altar of Sonia Sotomayor’s Supreme Court ambitions. 

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