Legal Commentary

WH Fighting Back On GOP Ricci Deceptions

By Big Tent Democrat

Because I am not on the White House talking points list, I have to read Greg Sargent to find out what the White House is pushing out there on the Sotomayor nomination:

I’ve obtained a set of White House talking points, privately distributed to outside liberal allies, that chart an aggressive counterattack against foes of Sonia Sotomayor, claiming that critics of a major ruling “wish to reignite the culture wars of the past” and are “grasping for attacks in the face of a strong nominee.” The new talking points — which hit back more aggressively than earlier ones — show the White House anticipates a fresh onslaught of attacks on her widely-cited ruling in Ricci vs. DeStefano when the Supreme Court rules on this case, perhaps this week. The talking points suggest the White House thinks the debate will shift to this case and that the attacks have some potential.

(Emphasis supplied.) I think Ricci provides potential -- for properly labelling the Roberts Court as a brazen extreme conservative judicially activist Court with no deference for the Legislative Branch. More . . .

No need to rehash what I have already written here. Or to revisit what others have pointed out. But here is the White House talking now:

Ricci v. DeStefano

* Judge Sotomayor was one member of a three-judge Second Circuit panel that ruled in Ricci, the New Haven firefighters case.

* The decision is an excellent example of judicial restraint. Although the judges were very sympathetic to the firefighters discrimination claims, they found themselves bound by Second Circuit precedent and unanimously affirmed the lower court decision. That lower court decision said that a city may evaluate whether to retain an employment promotion test that would have allowed essentially no minority candidates to be promoted within the fire department….Ricci v. DeStefano

* The panel decision has been criticized for not reaching out and deciding important constitutional questions, but this would have run contrary to the idea of judicial restraint because the outcome was controlled by federal statutory law and longstanding Second Circuit precedent. Those important constitutional questions are better left for the Supreme Court, which has taken the case…

* There has been an effort by some folks who wish to reignite the culture wars of the past to define this case as an affirmative action case. This is not a case about affirmative action—the City of New Haven had no relevant affirmative action plan in place—this was one of many employment discrimination cases under Title VII to come before the Second Circuit.

* Some people are trying to criticize Judge Sotomayor for being a judicial activist even as they criticize her for judicial restraint in Ricci. This demonstrates that they are grasping for attacks in the face of a strong nominee. They simply can’t have it both ways.

Weak tea imo. The real line of argument is that the Roberts Court will be making a brazen extremist attack on the Legislative Branch and a 38 year old SCOTUS precedent for no other reason than they think they know better than the elected representatives of the People.

The real extreme conservative judicial activists are the Roberts Wing of the Supreme Court.

Speaking for me only

Full post as published by TalkLeft on June 08, 2009 (boomark / email).