In a press conference yesterday, White House press secretary Robert Gibbs tried to defend Judge Sonia Sotomayor’s outrageous shenanigans in the New Haven firefighters case (Ricci v. DeStefano):
You can’t criticize somebody for ruling based on adhering strictly and strongly to the precedent of Second Circuit, in the case of — in this case, of Hayden v. The County of Nassau, and Bushey v. The New York State Civil Service Commission.
Gibbs’s brazen defense (which I’m told that White House lawyers are providing in an even bolder form on background) is quite a stretch and is at war with both highly respected Clinton appointee José Cabranes and Obama’s own Justice Department.
In his dissent from denial of rehearing en banc in Ricci, Judge Cabranes (joined by five other judges) states that the case “raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.” He calls the district court’s opinion (which Sotomayor and her panel colleagues adopted wholesale) “path-breaking” and the questions on appeal “indisputably complex and far from well-settled.” He declares that the “core issue presented by this case—the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit.”
Further, in its brief in the pending Supreme Court case, President Obama’s Department of Justice argues that the unsigned per curiam opinion that Sotomayor joined—and, given her aggressive lead role at oral argument, probably authored—did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.” On that ground, the Department of Justice argues that the Supreme Court “should vacate the judgment below and remand for further consideration.”
It’s true that the unpublished district-court opinion that Sotomayor and her panel colleagues adopted relies heavily on Hayden and Bushey and rejects plaintiffs’ various grounds for distinguishing those cases. It’s also true that Sotomayor and several of her colleagues, in an opinion concurring in the denial of rehearing en banc, maintain (contrary to Judge Cabranes and the five judges who joined his opinion) that Hayden and Bushey were “controlling authority.” But apart from the fact that neither Hayden and Bushey involved a government entity’s discarding the results of promotional exams, the position of Sotomayor and her colleagues depends on their assertion that “there was no evidence of a discriminatory purpose” in the City of New Haven’s discarding the results—the very assertion that the Obama Justice Department disputes.
(The en banc opinions and the district court’s opinion are available together here.)