Hayes declares four Supreme Court justices "outside the mainstream"
SUMMARY: Stephen Hayes claimed that Sonia Sotomayor's decision in Ricci "is far outside the mainstream of American thought." However, four Supreme Court justices agreed with Sotomayor's court that -- in the words of Justice Ruth Bader Ginsburg's dissent -- "what this case does not present is race-based discrimination in violation of Title VII."
On the July 13 edition of Fox News' Special Report, Weekly Standard editor Stephen Hayes claimed that Judge Sonia Sotomayor's "decision on racial preferences in this Ricci case, involving the New Haven Fire Department, is far outside the mainstream of American thought." In the Ricci v. DeStefano case, the 2nd U.S. Circuit Court of Appeals determined, in a decision joined by Sotomayor, that the city of New Haven did not violate federal anti-discrimination law when it threw out the results of a fire department test because of racial disparities in the scores. The 2nd Circuit's decision was not outside the legal mainstream; four Supreme Court justices agreed with the 2nd Circuit that -- in the words of Justice Ruth Bader Ginsburg's dissent -- "what this case does not present is race-based discrimination in violation of Title VII." Justice David Souter -- whose seat Sotomayor would fill -- joined Ginsburg's dissent.
Indeed, on the July 13 broadcast of his radio show, Fox News senior judicial analyst Andrew Napolitano stated that the decision in Ricci was a "close call" and that "the statute is an odd one and a difficult one to interpret, and she was reversed by a 5-to-4 vote. She could have easily been upheld by a 5-to-4 vote." He also stated that "there's no evidence" Sotomayor would "put her thumb on the scale of justice to favor some litigant whose cause she agreed with," adding, "Her opinions from the bench are well within the mainstream of American legal thinking."
From the July 13 broadcast of Fox News Radio's Brian & The Judge:
CALLER 1: If you're going to confirm a judge, the judge must explain the constitutionality. She must -- she or he must --
NAPOLITANO: But wouldn't you expect -- you and I have never met, but we've spoken to each other hundreds of times. You know that I am a fairly rational human being, but I'm also the subject of the things that made me. I mean, I was raised in a blue collar environment. I was fortunate enough to go to Princeton.
I brought things in my brain, in my makeup, a Catholic upbringing to the bench that a person who had a different background wouldn't bring. So don't we expect people to bring to the bench their personhood -- that which has made them what they are?
CALLER 1: Yes, you do, but I'll go back to something that you probably remember. The Giants, back before the Super Bowl, lost a game because their opponents got five downs. Now, what Judge Sotomayor is saying, that because a team only gets two yards -- averages two yards per play, that they deserve five downs to put them on an equal basis.
NAPOLITANO: All right, you think she'd put her thumb on the scale of justice to favor some litigant whose cause she agreed with --
CALLER 1: Yes, I do.
NAPOLITANO: -- and you don't like that.
CALLER 1: I really believe she will.
NAPOLITANO: All right.
CALLER 1: It -- and again, when you're talking --
NAPOLITANO: There's no -- there's no evidence of that. Her opinions from the bench are well within the mainstream of American legal thinking. She's a liberal Democrat. I mean, the president gets to appoint whoever he wants.
CALLER 1: And I agree with that; elections have consequences.
[...]
CALLER 2: You know, you had a case where a Supreme Court judge was literally on vacation with a member of the case, yet -- and sided with them and they had no problem with that. In this case, I think you have Fox News deliberately distorting the issue of the Connecticut firefighters' case, referring to it as Sotomayor's ruling; they just kind of forget about the majority and the rest of the court ruling with her and the fact that the rest of the court refused to hear the case.
NAPOLITANO: I agree with you that it was a close call. I agree with you that the statute is an odd one and a difficult one to interpret, and she was reversed by a 5-to-4 vote. She could have easily been upheld by a 5-to-4 vote.
Look, the chief justice was reversed by his colleagues on a case he ruled on while a judge -- and he was already the chief justice when they reversed him. Matt, thanks very much for the call as usual.
From the July 13 broadcast of Fox News' Special Report with Bret Baier:
BRET BAIER (host): Steve, today, as we were listening to Republicans, you were -- you said that some of them were forward-leaning and that caught you a little bit by surprise.
However, was there some sense of being tentative to not go too far in the criticism for worry about a backlash?
HAYES: Yeah, I think there probably was. I mean, you heard several Republican senators invoke Miguel Estrada, which I think had -- accomplished two things. One, it allowed them to talk about somebody that the Democrats had shot down largely because of ideology -- or at least that's the Republican perception -- and two, it allowed them to bring up --
BAIER: He was a nominee for the Court of Appeals by George W. Bush.
HAYES: Right. And --
MARA LIASSON (Fox News political contributor and NPR national political correspondent): And it was filibustered.
HAYES: And it also allowed them to bring up a Hispanic, whom they had supported rather vigorously.
You know, I think she's -- you know, of course, she's likely to be confirmed. I think everybody acknowledges that. I think we are still likely to see Republicans draw out a few issues, in particular, one of them being racial preferences. The country is squarely opposed to racial preferences.
Her decision on racial preferences in this Ricci case, involving the New Haven Fire Department, is far outside the mainstream of American thought. It's far outside the mainstream of the thought of most Hispanics. It's far outside the mainstream thought of most Democrats granting preferences to groups based on race.
They're going to bring that up. I think they need to be careful and talk about it in a smart way, but I think they're going to bring it up, and they should. They should be aggressive about it.
The other thing that jumped out at me today, listening to Republican senators, was I think five of them brought up this idea, this discussion that she's had about paying attention to -- or in some cases even operating in deference to -- international and foreign law.
I think this is likely to be something that we're going to hear much, much more about from Republicans to try to draw out some answers of exactly what she meant at one point in something she said in April; she said, you know, this -- we will lose our influence in the world if we don't pay more attention to international law.
This guy Hayes claimed that this decision (original decision) is outside the mainstream of the United States, so therefore, Sotomayor is outside of the mainstream of the US. If she is then outside of the mainstream, by Hayes' own reasoning, then the 4 justices who voted with Sotomayor's decision ALSO must be outside the mainstream yes? Also, lump in the other 2 judges on the panel that agreed with the decision, and the previous judge that agreed with the city in the first place. So, by my great math skills, we have 3+1+4 = 8 judges who are outside of the mainstream, according to Mr. Hayes.
What's your point? Or, do you not have one as per usual?
That was my point. :-)
It's a Paycheck the gains his allegiance and not the news of the day.
Fox News is the perfect place for a Man like you.
A place where the Majority is strong and they denigrate the few.
Speak truth to power.
Mr. News
MMFA was misleading in their headline, and they were very misleading by suggesting that the mangled quote today by Senator Leahy was even close to what Sotomayor said. It was not.
Speak truth to Mr. News. He needs help seeing it!!
I, nor probably have you, seen the test that was administered, so I cannot know for certain if it was racially biased, but these things, lots of times, are.
And what justice did you want done? Nobody got fired over this. Nobody got promoted over this. They were going to re-do the test.
That's fine. We can only go by what we read in the opinions. The opinions reveal that the questions were derived from interviews and questionnaires given to firefighters of all ranks. The test developer oversampled minorities in these endeavors. The oral part of the examination was presided over by panels of three, nearly all of which were comprised of 2/3 minority examiners. The developer worked with the city all throughout the development of the test.
I haven't heard of a single, specific question, that could be construed to be "racially biased." The Defendants couldn't identify one.
And I'm glad that it's so easy for you to blithely dismiss the time, money, and hardwork of those who scored well enough to qualify for promotion. Those qualified were supposed to fill the vacancies that arose in the Department's ranks. Had the decision been affirmed, their efforts and well-earned positions to fill those vacancies would have been taken away. Something tells me you wouldn't be so dismissive if you had been one of the few who performed well enough to qualify . .
And the S. Court wasn't "activist." You're glued to talking points. They recognized that under certain circumstances, two provisions of Title VII placed employers in a catch-22. They reconciled these two provisions and gave effect to both. No Court had done so before, and it was about time the S. Court stepped in. . ..
Simply put, activism doesn't mean changing the law. It means making new law by judicial fiat and usurping the power of the legislature.
Changing laws can normally only be done by Congress. And in this case, you said it yourself, they changed the law, which means, it's an entirely NEW law, which means, they were an activist court on this decision.
Changing law = new law = activist.
The Court did its job. You claim they were "activist" because it disagreed with the law as You see it. That's what the losing side always says, and that's why the phrase is just a platitude.
Of course the EEOC would try to reconcile and thresh out these two conflicting provisions. Regualtory agencies do it all the time, in every field. (The tax regulations are a prime example.) That's because Congressional legislation always contains ambiguities and paradoxes. Hence the reason for courts, who resolve these issues. No court is bound by the interpretation that regulatory agencies/commissions give to the plain text of a statute.
Here the Court did its job, resolving a conflict in the plain text of a statute. You simply don't like the outcome.
You say you haven't heard of a specific question that was racially biased, but have you even seen any of the questions? I haven't, so I can honestly say, I don't know.
I haven't dismissed their time and effort in preparing for the test. If I had taken this test, performed well, and then someone told me they were going to re-do the test, and throw out the first set of results, then fine, I'd probably be a little upset, but I would also suspect that I did well the first time through, there is no reason to suggest I wouldn't do well on a re-test. And again, nobody got promoted, so these guys, didn't LOSE anything.
The Supreme Court was indeed activist on this case. They rejected the court decision from the lower courts that were based on the laws on the books at the time the case was decided. In other words, they legislated from the bench on this case. That is, within the very definition of being an activist court. It's not a talking point, it's the truth. Because they were activist towards the result you wanted to see, you don't see it that way, but that's what happened. They overturned precedent. Again, activist.
Thats simple. There were NO questions like that to be found.
There are two parts to Title VII. The test had a "racial impact" and this could have been eliminated by better testing methods. Gingburg mentioned in her ruling the testing method used by Bridgeport that eliminated that problem.
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Not quite. Either way the case got decided there would have been on miscarriage of justice. The SC ADDED a new standard for what cities have to do when they think they may have inadvertantly made themselves vulnerable to a Title 7 lawsuit. NOW they have to decide if the plaintiffs would have a reasonable chance of winning. AND if they are vulnerable to a suit. This MIGHT bring about more Title 7 suits. It might not. It MIGHT make things better as the raising of the awareness of the issue has cities all over the country looking at their promotional tests to assure they do indeed measure the ability to do the job and business necessity so THEY dont have to go through this and questionable tests are tossed BEFORE they are given.