What Do You Think of Ruth Bader Ginsburg?

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane Sherron De Hart, a retired professor of history at the University of California, Santa Barbara. This book began as a research project examining Ginsburg’s early career as a women’s-rights litigator at the American Civil Liberties Union, and it expanded into a full-length biography (540 pages of text and 110 pages of footnotes).
Ginsburg spoke at length to the author during the early, limited part of the project, but she curtailed her cooperation later, likely because an authorized biography was (and remains) in the works. Whether because of De Hart’s own initial interest or the benefits of consultation with Ginsburg, the book is strongest when it focuses on Ginsburg’s early life and her work before her appointment to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. Readers will meet straight-A student and Brooklyn baton-twirler “Kiki” Bader, whose mother Celia died of cancer two days before Kiki’s high-school graduation. They will shake their heads at the notion that Ginsburg, although graduating at the top of her class from Columbia Law School, was offered a clerkship with a federal judge only after her law professor Gerald Gunther offered to substitute another (presumably male) candidate if Ginsburg did not pan out. And they will be touched by Ginsburg’s enduring partnership with her husband, Marty, who, as Ginsburg has said, “believed in me more than I believed in myself.”

Some of De Hart’s most valuable insights come in her account of how Ginsburg, who, in an effort “not [to] be considered confrontational,” responded to Harvard Law School Dean Erwin Griswold’s query about why she was occupying a place in the first-year class that could have gone to a man by saying it was important for her to “understand her husband’s work,” came to espouse women’s rights so whole-heartedly. De Hart traces some through lines that help explain how Ginsburg developed the ideas of equality that informed her determination to secure equal treatment for women under the law. Notable among these was a fortuitous sojourn in Sweden to research Swedish civil procedure. Ginsburg was struck by “the greater gender equality Swedes enjoyed” and by Swedish theorists’ and social scientists’ contention that “culturally constructed roles – stereotypical assumptions about the proper role of men and women – imposed constraints on both sexes that penalized individuals and impoverished society.”
Ginsburg’s experiences in Sweden, coupled with the sexism she had experienced and the influence of feminist writers like Simone de Beauvoir, prompted her to helm the ACLU’s new Women’s Rights Project. Her analytical tenacity, single-minded focus on work, meticulous planning, and uncompromisingly high standards enabled her to devise and carry out her goals successfully. De Hart offers detailed accounts of the series of cases through which Ginsburg succeeded in persuading the Supreme Court to raise the standard of review for laws that treated men and women differently based on damaging stereotypes about gender roles. She observes, as have others before her, that Ginsburg’s incremental approach – building in small steps on early cases with sympathetic plaintiffs, often men – was modeled on Justice Thurgood Marshall’s strategy of combating racial discrimination as a litigator for the NAACP. But she also highlights the pitfalls of equating gender discrimination with racial discrimination, particularly as an increasingly conservative Supreme Court began to insist on a “color blind” approach to the Constitution that subjected affirmative action programs to strict scrutiny.
Readers familiar with the pop-culture trope of Ginsburg as a fearless champion of liberal ideals may be surprised by De Hart’s reminder that the justice’s nomination was almost forestalled by her criticism of Roe v. Wade, which she publicly suggested may have done abortion rights a disservice by, among other things, leapfrogging legislative change and prompting a powerful political backlash. De Hart exposes the rifts within the feminist movement that led President Bill Clinton to respond, when Ginsburg’s name was first floated, that “the women are against her.”
De Hart’s account of Ginsburg’s years on the Supreme Court, though detailed and methodical, is less compelling, perhaps because De Hart had to rely on oral argument transcripts and opinions instead of interviews and the contemporaneous documents of the justices, most of which are not publicly available. Also evident in this section of the book is De Hart’s unhappiness with the conservative bent of the current Supreme Court. Although this ideological stance is not surprising given the clear respect for Ginsburg’s work that led De Hart to write this book, the author’s stridency sometimes detracts from her analysis.
These criticisms aside, De Hart offers the reader a comprehensive tour of Ginsburg’s Supreme Court career. She catalogs the justice’s occasional victories, like United States v. Virginia, in which Ginsburg wrote a majority opinion striking down the Virginia Military Institute’s male-only admission policy, and her more frequent setbacks. Those setbacks spurred Ginsburg to write the strong dissents that inspired her pop-culture persona, the “Notorious RBG.” Court-watchers humorously compared her scathing critique of the conservative majority’s decision in a landmark voting-rights case to Biggie Smalls’ biting rap lyrics. The rest is history – and shelves full of RBG merchandise.
A central question in the book is how a tiny, soft-spoken civil-procedure maven memorably described by Justice Harry Blackmun after an oral argument as a “very precise female” became a progressive icon. To some degree, this apparent contradiction simply reflects the differing facets of the justice’s personality: She is a detail-oriented workaholic who is moved to tears by grand opera, an ambitious achiever who delights in friends and family, and a rule-follower willing to rewrite the rules to correct injustice. In another sense, Ginsburg’s perceived evolution from “a woman for whom the word ‘moderate’ dangled from her wrist like an ID bracelet” to the inspiration for a Kickstarter-funded action figure is a function of the increasing conservatism of the Supreme Court. Yesterday’s New Deal moderate is today’s left-wing dissenter. In the immortal words of Norma Desmond in “Sunset Boulevard” – whom Ginsburg otherwise resembles only in her fondness for wearing turbans – “I am big. It’s the pictures that got small.”
The author of this book review clerked for Ginsburg from 1989-1990 on the U.S. Court of Appeals for the District of Columbia Circuit and testified before the Senate Judiciary Committee in support of Ginsburg’s nomination to the Supreme Court in 1993.
The post Book review: “Ruth Bader Ginsburg”: The evolution of a justice appeared first on SCOTUSblog.

Justice Souter Retiring So He Can Read.

Robert Bork once said serving on the Supreme Court would be “an
intellectual feast.”



By contrast, Justice David Souter
said he undergoes a “sort of annual intellectual lobotomy” when the
Supreme Court term begins in October, a condition that he said lasts
until the end of the term the following summer.


It was an offhand remark by Souter, made in service of a larger point
before an audience of the American Academy of Arts & Sciences in D.C.:
that Americans need to develop a “habit of mind” that includes reading
books – which, he implied, becomes very hard for him to do during the
bustle of a Supreme Court term. “I cram what I can into the
summertime,” Souter said.


Without making too much of it, Souter’s comment opened an interesting
window into his thinking about his job – and why conventional wisdom
has it that he is considering leaving the Court soon to repair to his
New Hampshire home. If he thinks of his work on the Court, even
sarcastically, as a nine-month-long, brain-evacuating experience, it
is easier to see why he would want to leave it behind – if nothing
else, to catch up on his reading.


It was a rare public outing for the reclusive justice, but he was at
ease, and among friends; he has been a fellow of the academy since
1997.(View the discussion at this C-SPAN site.) Souter spoke on a
panel discussing the role of humanities in civic life, with a special
focus on how to make the case for humanities education and for the
importance of humanities in general in the current economic and
political climate. Souter was joined by Patty Stonesifer, chair of the
Smithsonian Institution’s Board of Regents, Don Randel, president of
the Andrew W. Mellon Foundation, and Edward Ayers, president of the
University of Richmond, with Leslie Berlowitz, CEO of the American
Academy moderating.


Souter made a strong pitch for the necessity of learning history, in
part as “an antidote to cynicism about the past.” As an example, he
discussed how differently the justices who decided Plessy v. Ferguson
(in favor of racially separate facilities) viewed segregation from
those who decided Brown v. Board of Education against separate but
equal schools. Only by learning the historical context of both
decisions, Souter said, can the Plessy decision be understood.


During a question-and-answer period, Souter was expansive with advice,
though he cautioned against following it. As he was about to suggest
ways to advocate for humanities before Congress, Souter noted that he
has long been on the “judicial salary committee” urging raises for
judges, without any success. “Whatever I tell you, do the opposite.”


Souter said that during a conference on judicial independence at
Georgetown University Law Center led by Justices Sandra Day O’Connor
and Stephen Breyer two years ago, he learned that the problem was not
just that the public is ignorant about how the judiciary works. “The
problem is one of pervasive ignorance about government.” Taking a
civics class when he was a child, Souter said, was “dull as ditch
water,” but absolutely necessary – and only 50 percent of students
today take civics. Souter’s point appeared to be that “holding the
humanities tin cup” was not a narrow plea but a campaign to improve
all branches of education.


That led Souter to his discussion of the need for a “habit of mind”
that includes reading, intellectual curiosity, and self-doubt. He
ended by noting that the legendary jurist Learned Hand, quoting Oliver
Cromwell, the 17th century British leader, once said these words
should appear above the entrance of all schools, courthouses, and
public buildings: “Consider That Ye May Be Wrong.”

Supreme Court Justice Souter Loves To Read.

Supreme Court Justice David Souter is planning to retire at the end of
the current court term.

The vacancy will give President Obama his first chance to name a
member of the high court and begin to shape its future direction.

At 69, Souter is nowhere near the oldest member of the court. In fact,
he is in the younger half of the court's age range, with five justices
older and just three younger. So far as anyone knows, he is in good
health. But he has made clear to friends for some time that he wanted
to leave Washington, a city he has never liked, and return to his
native New Hampshire. Now, according to reliable sources, he has
decided to take the plunge and has informed the White House of his
decision.

Factors in his decision no doubt include the election of President
Obama, who would be more likely to appoint a successor attuned to the
principles Souter has followed as a moderate-to-liberal member of the
court's more liberal bloc over the past two decades.

In addition, Souter was apparently satisfied that neither the court's
oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth
Bader Ginsburg, who had cancer surgery over the winter, wanted to
retire at the end of this term. Not wanting to cause a second vacancy,
Souter apparently had waited to learn his colleagues' plans before
deciding his own.

Given his first appointment to the high court, most observers expect
Obama will appoint a woman, since the court currently has only one
female justice and Obama was elected with strong support from women.
But an Obama pick would be unlikely to change the ideological makeup
of the court.

Souter was a Republican appointed by President George H.W. Bush in
1990, largely on the recommendation of New Hampshire's former Gov.
John Sununu, who had become the first President Bush's chief of staff.

But Souter surprised Bush and other Republicans by joining the court's
more liberal wing.

He generally votes with Stevens and the two justices who were
appointed by President Bill Clinton — making up the bloc of four more
liberal members of the court, a group that has usually been in the
minority throughout Souter's tenure.

Possible nominees who have been mentioned as being on a theoretical
short list include Elena Kagan, the current solicitor general who
represents the government before the Supreme Court; Sonia Sotomayor, a
Hispanic judge on the U.S. Court of Appeals for the Second Circuit;
and Diane Wood, a federal judge in Chicago who taught at the
University of Chicago at the same time future President Barack Obama
was teaching constitutional law there.

President Obama's choice has an excellent chance of being confirmed by
the U.S. Senate, where Democrats now have an advantage of 59 seats to
the Republicans' 40.

By the time a vote on a successor is taken, the Senate is anticipated
to have a 60th Democrat, as the Minnesota Supreme Court is expected to
approve the recount that elected Democrat Al Franken over incumbent
Republican Norm Coleman in that state.

Souter was a graduate of both Harvard College and Harvard Law School.
He also attended Magdalen College at Oxford University in England. But
his academic pedigree was only one reason he had been regarded as a
thinking man's jurist and a highly thoughtful conservative prior to
his elevation to the nation's highest bench.

Once appointed and confirmed, he soon became a "surprise justice." He
bucked the expectation that he would join the court's conservative
wing — then led by Chief Justice William Rehnquist, who was appointed
to the court by President Nixon and elevated to chief by President
Reagan, and featuring Reagan appointees Antonin Scalia and Anthony
Kennedy.

The appointing president had been assured of Souter's credentials by
the White House chief of staff, John Sununu, who had known Souter as a
conservative member of the New Hampshire Supreme Court when Sununu was
that state's Republican governor.

But when confronted by the ideological debates and partisan landscape
of Washington, Souter surprised both Sununu and Bush by aligning
himself with the court's more moderate wing, which also included
Reagan appointee Sandra Day O'Connor.

Later on, Souter became a full-fledged member of the court's
unabashedly liberal caucus, featuring yet another Republican, John
Paul Stevens (appointed by President Ford in 1975), who remains a
member of the court to this day.

Souter was unconventional in other ways beyond his ideological
independence. He moved to Washington to attend court sessions, but he
returned to his beloved roots in New Hampshire whenever possible,
including for the court's long summer hiatus each year.

Rather than fly home, Souter preferred to drive. He also resisted
other forms of contemporary technology and convenience, holding out
against the cell phone and e-mail and continuing to write his opinions
and dissents in longhand, using a fountain pen.

Once engaged but never married, Souter was once listed among the
capital's 10 "most eligible bachelors" but remained in that category
of "confirmed bachelors."

He was never a creature of the capital city's social scene, living in
a spartan apartment in the city not far from the Supreme Court offices
on Capitol Hill. Although he served nearly two decades on the high
court, he made no secret of his preference for the lifestyle and pace
of his native rural New Hampshire.

England Gets A Supreme Court.

The Mother Country wants to be like her colonies.
For the first time in its history, Great Britain is establishing a Supreme Court. In the past, the role of the highest court of appeal has always been fulfilled by the so-called Law Lords — 12 senior judges sitting in the House of Lords, the upper house of the British Parliament.

In October 2009, all that will change in an upheaval of British tradition and jurisprudence.

Historically, the separation of powers among the three branches of government has never been part of Britain's unwritten constitution, says Lord Harry Woolf.

Until recently, Woolf was Lord Chief Justice, the head of the judiciary in England and Wales. He says there are numerous virtues in not having separation of powers.

"I had, under the old system, the advantage of being a member of, in effect, Congress, so I could and did come down to Parliament, and say, face to face, 'Look, we have these or those problems,'" he says.

Few people accused the Law Lords — the final court of appeal that was embedded in the House of Lords — of being too much in the government's pocket. There is little media coverage of the separation of powers issue, much less knowledge among average Britons — that the creation of the Supreme Court is taking place.

Tony Travers, a professor of politics at the London School of Economics, says there is a "profound sense of disengagement with traditional politics and distrust in politics."

"This has led to soul-searching about what might be changed constitutionally, believing that constitutional change might re-engage the public, and make them less suspicious of politics and politicians," he says.

As a result, the Supreme Court will open in Parliament Square, opposite the Houses of Parliament. But it's not just the relationship between judiciary and legislature that is being targeted for change.

The only half-reformed upper house of the British Parliament, the House of Lords, is still unelected. And the relationship between the executive — the government at No. 10 Downing Street — and Parliament, the British legislature that is supposed to place checks and balances upon the executive, is under scrutiny.

"The relationship is very close," says Andrew Turnbull, former head of the British Civil Service. "Indeed, you could say they are joined at the hip."

Turnbull was instrumental in pushing through the reforms that created a Supreme Court, and he wants to see more reforms across the British political landscape, including a reduction in the executive's ability to influence the legislature and a different way of choosing government ministers.

Under the current British system, the prime minister chooses his ministers from his own party's members of Parliament — as though President Obama chose his Cabinet only from the congressional members of his party. Turnbull says this means there is far too small a pool from which to choose capable ministers, and it can mean a conflict of interest for young ambitious members of Parliament.

"Those aspiring to make their way up the hierarchy will have tendency to pull punches, won't want to be too troublesome, won't want a reputation as part of the awkward squad. But that means the scrutiny of government business is not as robust as it might be," he says.

Finally, there is the underlying question of the constitution itself. Unlike the United States, Britain does not have a written constitution, relying instead on a mixture of parliamentary conventions, statutes and court judgments.

Now, some reformers say that along with all the other changes, the British need to break with their vaunted traditions and commit their constitution to writing.

But even at a time of change in the country, that radical idea still seems — at the moment, at least — as if it might be a step too far.

Clarence Thomas would Allow Strip Search of 13 yr Old Girl.

The Supreme Court on 25 June 2009 ruled 8-1 that then 13-year old Savana Redding’s Fourth Amendment rights were violated when her school strip searched her looking for prescription strength drugs they believed she was holding. What struck me as odd in this ruling is that ALL, but one justice found Redding’s rights had been violated EXCEPT Justice Clarence Thomas.
Even today, Thomas’ name conjures cackles from folks who remember the scandal that surrounded his confirmation hearings. Thomas is no youngster and must remember the struggle of Blacks to enjoy the same rights as white Americans, yet he is the judge who repeatedly appears to rule in favor of obliterating an individual’s rights OR ignoring when they’re being violated. As I read the ruling, I was filled with sadness that the only glaring supporter of strip-searching a 13-year old girl after documents showed she waited more than two-hours outside the office of the school’s Vice-Principal’s without so much as a call to her parents was Justice Thomas. Justice Ginsburg wrote, “Abuse of authority of that order should not be shielded by official immunity.” Justice Thomas simply said that the majority’s finding second-guesses the measures that educators take to maintain discipline “and ensure the health and safety of the students in their charge.” When a man of color believes that giving up rights to ensure safety is a plausible course of action something is definitely wrong. I ask myself if it matters whether we’re speaking of a justice on the supreme court or a person flipping burgers at Burger King, "Do minorities feel worthy of having equal rights?" To be clear, there wasn’t any mention of the race of Savana Redding; my concern is from the standpoint of a Supreme Court Justice upholding actions that minimize or obliterate someone’s rights.

Clarence Thomas succeeded Justice Thurgood Marshall – the first ever African American Supreme Court Justice. I do not believe Justice Marshall would approve of Supreme Court decisions issued by Justice Thomas.

The ClassicLiberal had this to say:
The case of Savana Redding, a young girl who was forced to strip for Arizona school officials who were looking for a little ibuprofen in 2003, has finally been ruled on by the Supreme Court.

Only 13-years old, and an honor student in the 8th grade, Savana had been forced to take off her clothing, because the school's vice principle found one over-the-counter naproxen pill, and a few 400-milligram ibuprofen pills (equal to 2 over-the-counter pills each) in the pocket of another student. The school officials didn't even feel the need to bother calling her mother.

Of course, no drugs were found.

Thankfully, the Supreme Court ruled that the school administrators violated Savana Redding's rights. Writing about this story of Big-Brother's Assualt on an Innocent Child last August, I asked the question:

Are these "drug warriors" anything more than child molesters in this case?

Justice David H. Souter seems to agree with me, writing in his opinion (emphasis added):

The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

Justice Clarence Thomas however, the lone dissenter on the case, wrote:

Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment ... Redding would not have been the first person to conceal pills in her undergarments, nor will she be the last after today's decision, which announces the safest place to secrete contraband in school.

For a Supreme Court Justice that I generally believe gets it right, he's way out of line on this one!

Justice Thomas' opinion here, is radical, bizarre and dangerous. It is the very type of thought that has our country in the situation it is today. If we're going to "share" our parenting responsibilities with the State, allowing them free-range to humiliate our children as they please, make no mistake about it, freedom is unquestionably doomed.

First of all, the judges were not deciding "the best manner for maintaining quiet and order in the school environment." I'm not a judge, nor even a lawyer, and I can figure that out. And let me be straight-up here ... while I do believe that generally parents should take the teacher/administrators side (it's how we learn), but if this had been one of my little nieces or nephews ... there would have been an entirely different case being tried. I would have personally went and kicked the principal's ass!

Oh, cry me a river over your "vigilante justice" mantras as well. The state was the violator in this case, so they certainly weren't about to "serve and protect." These school officials are child molesters in my book. So any amount of trouble for me, would be a small price to pay, for doing what is right by protecting them.

"We the people" either have rights or we don't. There is no middle ground. Justice Thomas seems to feel "we the people" have no rights, outside the arbitrary political-constructs of law. With an economy on the verge of collapse and a government on the verge of default, the people of this country better start taking their natural rights seriously and know who they belong to, if we wish to pass freedom on, to future generations.

In the case of Savana Redding, Justice Souter wrote that what was missing in the case, "was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear."

Yet in spite of this fact, that there was no "probable cause," Justice Thomas would prefer to let deviant school administrators keep strip-searching children! Every American should be outraged.

Clarence Thomas thinks Voting Rights Act is Unconstitutional.

Justice Clarence Thomas, alone among the 9 Supreme Court justices, said he would have held Section 5 of The Voting Rights Act is unconstitutional.

Anyone who believes that only "liberal" judges are "activists" should read Justice Clarence Thomas’ dissent in the 23 June Supreme Court ruling on the Voting Rights Act in Northwest Austin Municipal Utility District No. 1 v. Holder.

If an activist is a judge who wants to use the power of the courts to substitute his preference for the will of the people’s elected representatives, then Thomas fits the definition.

Legal scholars have known this about Thomas for some time. But still he gets held up as a stellar example of a "conservative" by those who spit "activist" as an epithet synonymous with "liberal."

There are times when justices can and should tell the legislative branches they’re wrong or they’re not doing their job. Sometimes, whether "activism" is acceptable depends on whether you like the outcome.

In the voting rights case, Thomas was the only one of the nine justices who wanted to throw out Section 5 of the 1965 Voting Right Act as an unconstitutional intrusion on states’ rights.

It’s not that other members of the court weren’t grinding their teeth over the provision. But none of them but Thomas were prepared to substitute their judgment for Congress’ at this point. In fact, Chief Justice John Roberts wrote the court’s opinion that decided the case on narrow grounds, basically avoiding for now a decision on Section 5’s constitutionality.

Some analysts are saying that Roberts essentially rewrote the law to achieve that result, an activist act in itself. Even under that interpretation, though, he backed away from a heavy-handed judicial pronouncement on a key civil-rights law most recently reauthorized in 2006.

The 15th Amendment, which guarantees the right to vote free from impediments based on race, color or "previous condition of servitude," directly empowers Congress to enforce it through "appropriate legislation."

Of course, like many constitutional provisions, defining what’s appropriate is left up to Congress and the courts.

Section 5 has been controversial from its inception because it requires only certain states, mainly from the old South, to get Justice Department clearance for any revisions in election procedures. Redraw congressional districts? Pre-clearance required. Switch from at-large voting to single-member districts? Pre-clearance required. Change school board district boundaries? Pre-clearance required.

Texas is one of the states that must go through pre-clearance. And the Northwest Austin MUD, which never has been accused of racially discriminating against voters, argued that if it couldn’t get exempted from the requirement the law must be unconstitutional.

Even those who want to do away with Section 5 acknowledge that in the 1960s it was an effective way to enforce equal rights against states that eluded their obligations by adopting onerous tests and arbitrary restrictions that prevented blacks from voting.

"Enforcement efforts before the enactment of Section 5 had rendered the right to vote illusory for Blacks in the Jim Crow South," Thomas wrote. "Despite the Civil War’s bloody purchase of the 15th Amendment, the reality remained far from the promise."

But the world has changed, he said, and the law should reflect that.

In his 19-page dissent, Thomas pointed out that in seven states covered by Section 5, Black voter registration exceeds the national average. He noted that in Texas Black registration and turnout in the 2004 election was higher than for whites.

For Thomas, that was evidence the law no longer meets the threshold for being a constitutional exercise of congressional power over the states.

But his argument could just as easily have been one made on the House or Senate floor for why Section 5 should be dropped. But Congress reauthorized it. And that makes Thomas sound as though he simply wants to override a choice he doesn’t like.

More than 40 years after the Voting Rights Act was enacted, "the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," he said.

And he doesn’t believe that states should continue to be burdened based on "second-generation barriers," racial polarization or "discrete and isolated incidents of interference with the right to vote." His bottom line: Extreme circumstances justify extreme remedies, but anything else falls short.

Reasonable people can argue that subtle behavior continues that unfairly suppresses minority voting. Likewise, reasonable people can argue that it’s unfair to keep putting jurisdictions through the delay and expense of pre-clearance when they’ve largely cleaned up their act or never acted egregiously in the first place.

But it’s hard to argue that only "liberal" judges are "activists" who try to shape the law to their preference.

You can say what you want about Supreme Court Justice Clarence Thomas, and plenty has been said and little of it's flattering. But you can't say he's not a man of his word. Since that fateful day in 1991 when by the narrowest of the margins a deeply divided and even more deeply reluctant Senate confirmed him to the high court, Thomas vowed payback against those who ridiculed, reviled, and hounded him during the confirmation fight. He will never forget that humiliation.

He proved that again in yet another of his patented one man dissents against the court's majority ruling not to scrap a key section of the Voting Rights Act. Thomas went against his fellow hard line, strict constructionist, cut buddy Antonin Scalia in his dissent. He argued that he'd dump the Act since as he put it "The extensive pattern of discrimination that led the Court to previously uphold Section 5 . . . no longer exists. "

It does, and the other eight judges, Scalia included, obviously were bothered enough by the briefs from civil rights groups that implored the court to uphold the Act. They fully documented that more than a few districts in the South and the West have used rigged or malfunctioning voting machines, selective photo IDs, contrived language requirements, alleged ballot shortages, the absence of polling places and registrars, the selective use of felon laws, and intimidation tactics to chase as many blacks, Latinos and American Indians from the polls as possible. The Justice Department has filed dozens of complaints of voting irregularity and discrimination complaints in the past two decades.

Thomas's ridiculous lone wolf votes on race based court cases, of course, make no sense to most legal experts. But his decisions make sense because they have less to do with his warped interpretation of law and its practice than with his publicly expressed racial views, and his private vow to get revenge.

When asked how long he'd stay on the court, he reportedly said that he'd stay there for next 43 years of his life. He was 43 at the time. In a more revealing aside, he supposedly quipped to friends that it would take him that long to get even. Whether that is hyperbole or an apocryphal tale, it hasn't taken him 43 years to wreak his revenge.
He has been a one man wrecking crew to expunge race from law and public policy decisions. But this is not simply one man's personal bitterness over his alleged mistreatment by liberals and civil rights leaders. Or a case of his digging his heels in to push his retrograde view on racial matters. He wants more judges to think and act like him on the bench. And all the better if those strict racial constructionist judges happen to be minorities.

In his autobiography My Grandfather's Son, the bitter feelings that he holds against those who did so much to dump his confimration were on full display. He showed no sign of budging a step from the relentless public and private war he's waged against civil rights leaders and liberal Democrats. The "liberal mob" as he brands them has one goal, and only one goal, and that's to "keep the black man in his place." The black man of course is Thomas.

The other theme that courses through Thomas's clinical need for payback is his obsessive view of himself as the perennial martyr. In an American Enterprise Institute lecture in 2001, he wrapped himself in the martyr's garment and said that he expected to be treated badly for challenging liberal opinion.

Thomas's mean-spirited and vindictive views and legal opinions on the death penalty, age and gender bias, first amendment, prisoner rights and affirmative action cases were well known by the time he hit the court in 1991. It can hardly be said that Thomas latched on to judicial conservatism solely to curry favor with white conservatives to snatch a seat on the high court. He believes what he says and writes even when others don't and can't. But even if he didn't he'd still say and write the ridiculous things he does that masquerade as dissenting legal opinions. He's simply fulfilling his vow of payback.

A Supreme Court challenge to the Voting Rights Act, the government's chief weapon against racial discrimination at polling places since the 1960s, survived Monday 23 June in a ruling that nevertheless warned of serious constitutional questions posed by part of the law.

Major civil rights groups and other defenders of the landmark law breathed a sigh of relief when the court ruled narrowly in favor of a small Texas governing authority while sidestepping the larger constitutional issue.

After argument in late April, it appeared the court's conservatives could have a majority to strike down part of the law as unnecessary in an era marked by the election of the first African-American president.

But with only Clarence Thomas in dissent, the court avoided the major questions raised over the section of the voting law that requires all or parts of 16 states — mainly in the South and with a history of discrimination in voting — to get Justice Department approval before making changes in the way elections are conducted. This is puzzling and troubling. Of the nine Justices, Thomas was the lone dissenter. He is the only Black justice on the Court. He appears to go out of his way to adverse effect Blacks.

The court said that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, could apply to opt out of the advance approval requirement, reversing a lower federal court that ruled it could not. The district appears to meet the requirements to bail out, although the high court did not pass judgment Monday on that point.

Five months after Barack Obama became president, Chief Justice John Roberts said the justices decided not to determine whether dramatic civil rights gains means the advance approval requirement is no longer necessary. That larger issue, Roberts said, "is a difficult constitutional question we do not answer today."

Attorney General Eric Holder called the decision a victory for voting rights and said the court "ensured that this law will continue to protect free and fair access to the voting booth."

Debo Adegbile, the NAACP Legal Defense and Educational Fund lawyer who argued for the preservation of the law at the high court, said, "The fact is, the case was filed to tear the heart out of the preclearance provision of the Voting Rights Act and that effort failed today."

But critics of the law said the court made clear that it may not take such a restrained approach the next time a voting rights challenge comes it way.

"It leaves the courts wide open to another challenge. If someone files a new lawsuit, I think there's a very good chance that down the line they might find it unconstitutional," said Hans von Spakovsky, a legal scholar at the conservative-oriented Heritage Foundation.

Rep. Lynn Westmoreland, R-Ga., one of only 33 lawmakers who opposed renewal of the law in 2006, said, "I'm disappointed that the justices laid out the case for why the law is unconstitutional and then stopped short of tossing it. I do feel optimistic, however, that the court's dim view ... means the law will not survive for the full length of its 25-year renewal."

The court's avoidance of the constitutional question explains the consensus among justices in the case rendered Monday, where they otherwise likely would have split along conservative-liberal lines.

Justice Clarence Thomas, alone among his colleagues, said he would have resolved the case and held that the provision, known as Section 5, is unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas said.

Roberts himself noted that blacks and whites now register and turn out to vote in similar numbers and that "blatantly discriminatory evasions of federal decrees are rare."

He attributed a significant share of the progress to the law itself. "Past success alone, however, is not adequate justification to retain the preclearance requirement," Roberts said.

Still, the court did not decide that question in what Justice Ruth Bader Ginsburg recently described as "perhaps the most important case of the term."

The Voting Rights Act, first enacted in 1965, opened the polls to millions of black Americans. In 2006, the Republican-controlled Congress overwhelmingly renewed the part of the law which provided for the advance approval requirement for 25 years and President George W. Bush signed it.

The Austin utility district, backed by a conservative group opposed to the law, brought the court challenge. It said that either the district should be allowed to opt out or the entire provision should be declared unconstitutional.

Based on the tone of the questions when the case was argued in late April, many civil rights and election law experts predicted the Roberts-led court would indeed strike the measure down.

The court ruled instead on a provision of the law that allows a state or local government to seek to be free of the advance approval requirement.

The three-judge court in Washington, D.C., that originally decided the case said the utility district did not qualify as a local government that is eligible to bail out. The high court reversed that ruling Monday, saying "all political subdivisions" are eligible to file a bailout suit.

The Austin utility district is in the heart of Canyon Creek, an affluent suburb of about 3,500 residents that didn't break ground on its first house until the 1980s. About 80 percent of residents in Canyon Creek are white, according to the 2000 census.

As recently as 2002, voters in Canyon Creek used a neighbor's garage to cast their ballot in their utility board elections. The board wanted to change the polling location to a school, but first had to seek federal clearance.

The community got it, but Canyon Creek's board felt that needing approval from Washington was an unnecessary obstacle in a tiny neighborhood with no history of minority voter discrimination.

Latina judge, Sonia Sotomayor Goes to the Supremes.

Circuit judge Sonia Sotomayor has been chosen by President Barack Obama to serve on the Supreme Court, putting her in line to be the first Hispanic person to wear the robes of a justice.

A formal announcement from the US president is expected later. Sotomayor, 54, would succeed the retiring justice David Souter, if the Senate confirms the move. Two officials revealed Obama's decision ahead of the announcement on condition of anonymity.

Administration officials said Sotomayor would bring more judicial experience to the court than any justice confirmed in the past 70 years.

Born to Puerto Rican parents and raised in a Brooklyn housing project, Sotomayor is likely to be portrayed by the right as a liberal, in keeping with Obama's own leanings, but she was first appointed as a New York district judge by George Bush in 1991. She has a reputation as neither an extreme liberal or a crusader.

Sotomayor says she was inspired to become a lawyer by watching the Perry Mason TV series as a child. She has served on the US court of appeals for the second circuit since 1998.

Sotomayor studied at Princeton and graduated with the highest honours, before going to Yale law school where she edited the Yale Law Journal. She began her legal career as an assistant district attorney in New York county before going into practice in the city, where she made partner after three years.

She was appointed as a judge in the district court while still in her 30s, making her the youngest judge in the southern district of New York, before being named an appeals judge by Bill Clinton. At her Senate confirmation hearing more than a decade ago she said: "I don't believe we should bend the constitution under any circumstance. It says what it says. We should do honour to it."

Her best-known ruling was probably the injunction she issued against major league baseball owners in April 1995, effectively ending a baseball strike of nearly eight months, which had led to the cancellation of the World Series for the first time in 90 years.

She is a prosecutor who tried violent criminals like the so-called Tarzan Murderer, a lawyer who represented silk-purse clients like Fendi and Ferrari, and a judge who ruled on subjects as varied as a strike by baseball players and the exclusionary rule. After 17 years on the district court and now the United States Court of Appeals for the Second Circuit, in New York, Judge Sotomayor has accumulated so little money that her credit card and dental bills nearly match her total savings.

The documents reveal that the White House contacted her about a possible Supreme Court nomination on April 27, three days before Justice Souter’s plan to retire was publicly reported. From that point on, she wrote, she had “near daily phone calls” with White House officials, indicating how serious Mr. Obama was about her as a candidate from the beginning.

Unlike Mr. Obama, who as president has largely avoided overt discussion of his racial identity, Judge Sotomayor has made her ethnicity a regular theme of her public addresses, touching on it to make points with audiences that were sometimes largely Hispanic and sometimes not. At times, she portrayed herself as a stranger in a strange land.

“Somewhere all of us Puerto Ricans and people of color have had a defining moment when we were shocked into learning that we were different and that American society treated us differently,” she told the National Puerto Rican Coalition in 1998. “The shock and sense of being an alien will never again, I suspect, be as profound for any of us as that first experience, because I know from personal experience that our education and professional training have equipped us to deal better in this sometimes alien land.”

In another 1998 speech, she said the United States was often ambivalent about how to deal with its diversity. “America has a deeply confused image of itself that is a perpetual source of tension,” she said. “We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence.

“Yet we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores those very differences that in other contexts we laud.”

Her speeches also indicate that she is not afraid to take on opponents. In 1998, after she was confirmed to the appeals court, she recounted how she was vigorously questioned by senators based on what she called “mischaracterization and misunderstanding of three of my decisions” by Rush Limbaugh. In recent days, Mr. Limbaugh has led the fight against her nomination, calling her a “reverse racist.”

In a 2001 speech, Judge Sotomayor attributed the yearlong delay before her confirmation to “Senate Republican leaders who believed that I was a potential for the Supreme Court one day.”

“They also believed that I am a liberal and therefore did not want the nomination to go through,” she continued.

She credited “support from Latino and women’s groups” for breaking the stalemate.

That was the same year she made the comment about how a “wise Latina” could make a better decision than a white man. The White House has called that a poor choice of words, but it was not the only time she used them. In 1994, she said something similar, although she referred to women generally, not just Latinas. And in 2003, she said a “wise Latina woman” would “reach a better conclusion” but did not say better than whom.

The White House argued that the fact that she had used a similar formulation in 1994 without its being questioned during the 1998 confirmation process showed that it was now being manufactured as a false issue. And to rebut the notion that she would let her background blur her jurisprudence, the administration pointed to a 2000 speech in which she said, “I have to unhook myself from my emotional responses and try to stay within my unemotional, objective persona.”

The documents submitted to the Senate underscored how much more modest Judge Sotomayor’s finances were than those of many of her would-be colleagues. Judge Sotomayor, who makes about $180,000 a year, owns no stock and has just $31,985 in savings. Her two-bedroom apartment in Greenwich Village, which she bought in 1998 for $360,000, is her only major asset, valued at just under $1 million.

After refinancing several times, she owes $381,775 on the home as well as $15,000 for credit card bills and $15,000 for dental bills, making her net worth just over $740,000.

Federal judges who spend at least 15 years on the bench, as Judge Sotomayor has, are entitled to an annual retirement benefit equal to their full salary for life starting at age 65.


Obama's nomination is the first by a Democratic president in 15 years. Obama has said publicly he wants a justice who combines intellect and empathy; someone able to understand the troubles of ordinary Americans.

Democrats hold a large majority in the Senate. Barring the unexpected, Sotomayor's confirmation should be assured. If approved, she would join Justice Ruth Bader Ginsburg as the second woman on the court.

Sotomayor has spoken openly about her pride in being Latina, and said personal experiences "affect the facts that judges choose to see".

"I simply do not know exactly what the difference will be in my judging," she said in a speech in 2002. "But I accept there will be some based on my gender and my Latina heritage."

From the moment Souter announced his resignation it was widely assumed Obama would select a woman to replace him, and perhaps a Hispanic as well.

Others known to have been considered included the federal appeals judge Diane Wood, who was a colleague of the president's at the University of Chicago law school, as well as two members of his administration, the homeland security secretary, Janet Napolitano, and the solicitor general nominee, Elena Kagan.

JUDGE SONIA MARIA SOTOMAYOR:THE RIGHT PERSON FOR THE RIGHT JOB
(By Helen L. Burleson, Doctor of Public Administration)
QUOTE:
I’m going to open my premise with a very simple observation. A young child is walking alone on the parking lot of a grocery store. You observe that there is a father walking a few steps ahead of the child. Now you see a mother with a bag of groceries in her arms, one child holding her hand and another one holding onto her skirt. That simple observation may very well explain what Judge Sotomayor alluded to when she referenced the fact that as a female she views life differently than a man. Let’s face it, there is a difference between the way men and women interpret life. This may well have something to do with the way boys and girls are socialized; and, these differences show up early in life. Little girls like to dress up and play house. Little boys like to play cops and robbers and rough house.

There is even a difference in color selection where women tend to like pinks and brightly colored garments and men tend to prefer the more somber colors.

Women tend to be more nurturing and empathetic which is why merchants will tell you that more money is spent celebrating Mothers’ Day than Fathers’ Day. Most of us remember the warm embraces, the tender hugs and kisses when we were either physically or mentally bruised. Father’s tend to tell us to keep a stiff upper lip when we are hurt.

Now let’s apply this to the law, especially, the law of the land, The Supreme Court. Both males and females rise to the expectation of interpreting the Constitution of the United States of America, however, females bring a quality, called empathy to their judgements. This is not to say that men don’t have empathy, but it is less evident in most men. Some men even think of this as a weakness; but, only the strong do not fear to show empathy. This does not mean that the female is less strict in applying the rule of law, but she also has a unique perspective from her years as a nurturer that sees the human element in the law. This broader view may very well cut down on recidivism because of the morality that a female seems to engender in dealing with people and issues. Who is it who first teaches us right from wrong? More often than not it is the mother.

The letter of the law must be upheld, but there is also the spirit of the law which must be part and parcel of all decisions. Understanding and applying the spirit of the law is something that the female psyche encompasses. That is why we need more females on the Bench. I, personally, can think of no one more capable of valuing the spirit of the law because of her life story and her life experiences. The Judge has walked in the shoes of so many average Americans. The death of her father at an early age probably caused her to develop a strength, a fortitude and a level of wisdom and maturity that many children do not experience. Seeing her mother struggle to support the family is a part of her experience that probably caused her to be motivated to work hard, to set goals and achieve beyond expectations of a child growing up in a housing project. Her issue with her health is also a factor that influenced her because most children grow up healthy and are not burdened with having to deal with the rigors of adjusting to special diets and even medication. The totality of her life experiences are those that make one appreciate life, liberty and the pursuit of happiness. Unfortunately, illnesses are great levelers that often bring out humility, caring and sensitivity. Think about those people in your life who have suffered from chronic diseases, if they are not made bitter, they are usually more optimistic and appreciate the small things in life and are more grateful for the life they have.

The critics and the cynics are mocking the emotion – empathy. One such critic scoffed (and I’ll paraphrase) ‘empathy, empathetic, I’ll show you empathy right on your behind.’

Usually the more secure a man is the more he is willing to show his feminine side of compassion and empathy. To me, a man is never so strong as when he cries over a great loss: the loss of his parents, his spouse, and heaven forbid, his children. All emotions are good. It is even good to show anger and disgust sometimes, as long as that is not the overwhelming emotion. Experiencing the range of emotions helps us keep our equilibrium.

Beware the critics who are calling Judge Sotomayor a racist! I think they speak with a forked tongue and are projecting their deep and basic philosophies on someone else. How many of these same critics decried the fact and called it racist when for centuries the Supreme Court was 100% white males. Did they not consider this racist? Enjoy your great laugh when you hear the ignorant say she is not qualified. How on earth would they know? Small minds speak small words and perform small deeds.

There is another reason why Judge Sotomayor is needed on the Bench. America is a very diverse country and that diversity is what distinguishes us from most other nations. The richness of our diversity makes us the better for having lived in an environment where all ethnicities, races, religions, ages, gender, cultures and philosophies are incorporated, accepted and respected.

There is no question that Judge Sotomayor is qualified. Those who say she does not have the intellect are deficient themselves and in so being, are trying to make themselves feel better by devaluing those who are more talented than they are. Don’t be fooled by the motivation of the naysayers and the upholders of the status quo.

I’m going back to my opening premise. If we just all use a little common sense, or as the old folks used to call it, “Mother Wit” we would all be better off for it.

I strongly endorse President Obama’s selection of Judge Sonia Maria Sotomayor to become a justice of the Supreme Court of the United States of America. Judge Sotomayor is the epitome of a Horatio Alger heroine.
UNQUOTE.

Ten Things To Know About Judge Sonia Sotomayor.

1. Judge Sotomayor would bring more federal judicial experience to the bench than any Supreme Court justice in 100 years. Over her three-decade career, she has served in a wide variety of legal roles, including as a prosecutor, litigator, and judge.
2. Judge Sotomayor is a trailblazer. She was the first Latina to serve on the Court of Appeals for the Second Circuit and was the youngest member of the court when appointed to the District Court for the Southern District of New York. If confirmed, she will be the first Hispanic to sit on the U.S. Supreme Court.
3. While on the bench, Judge Sotomayor has consistently protected the rights of working Americans, ruling in favor of health benefits and fair wages for workers in several cases.
4. Judge Sotomayor has shown strong support for First Amendment rights, including in cases of religious expression and the rights to assembly and free speech.
5. Judge Sotomayor has a strong record on civil rights cases, ruling for plaintiffs who had been discriminated against based on disability, sex and race.
6. Judge Sotomayor embodies the American dream. Born to Puerto Rican parents, she grew up in a South Bronx housing project and was raised from age nine by a single mother, excelling in school and working her way to graduate summa cum laude from Princeton University and to become an editor of the Law Journal at Yale Law School.
7. In 1995, Judge Sotomayor "saved baseball" when she stopped the owners from illegally changing their bargaining agreement with the players, thereby ending the longest professional sports walk-out in history.
8. Judge Sotomayor ruled in favor of the environment in a case of protecting aquatic life in the vicinity of power plants in 2007, a decision that was overturned by the Roberts Supreme Court.
9. In 1992, Judge Sotomayor was confirmed by the Senate without opposition after being appointed to the bench by George H.W. Bush.
10. Judge Sotomayor is a widely respected legal figure, having been described as "...an outstanding colleague with a keen legal mind," "highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets," and "a role model of aspiration, discipline, commitment, intellectual prowess and integrity."
Judge Sotomayor is an historic, uniquely qualified nominee to the Supreme Court.

(A Commentary by Roberto Dr. Cintli Rodriguez (6/02/2009))

The president’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court has come during a most awkward time in the history of U.S. journalism, which many analysts claim is in serious decline, if not on life support.

What her nomination clearly shows us is that what this nation needs is more incisive journalism, not less. Yet, to be sure, the rise of right-wing media, which include FOX News and virtually all the known right-wing radio talk show hosts, is the antithesis of journalism.

Their coverage of the Sotomayor nomination points to the need for honest debate, not simply on the issues of race, but on the right wing’s aversion to truth. It also points to the right wing's pompous beliefs, on every topic, including affirmative action, that their positions are “American.”

Extremist politicos Newt Gingrich and Tom Tancredo, both of whom have zero credibility but are stars of right-wing media, have led the charge that Sotomayor is a racist. They have been joined by the usual wingnuts: Rush Limbaugh, Gordon Liddy, Glenn Beck, Pat Buchanan, Lou Dobbs, to name a few. Even Juan Williams of NPR, has parroted the claim that Sotomayor’s (out-of-context) statements are racist. The fact that the nation’s discussion centers on whether she is a racist or not -– or that she is an "affirmative action" pick (Buchanan) -– points to both the power of the wingnuts and also to the virtual impotence, or complicity, of mainstream media.

Historically, mainstream journalists have been taught that critical analysis constitutes injecting subjectivity into their reporting.

All this brouhaha is based on the Sotomayor statement that the experiences of a Latina might allow her to make better judgment in court than a white male. Her detractors say that if a white male had made similar statements he would have been automatically disqualified. They conveniently ignore the fact that the Supreme Court has been virtually all-white for most of the nation’s history. It also ignores the fact that throughout U.S. history, white males have generally not been subjected to apartheid discrimination and segregation, let alone extermination, slavery, forced removals, extra-legal brutality and false imprisonment.

The charges against Sotomayor have a familiar ring. Staunch segregationists used to charge that Martin Luther King, Jr. was both un-American and a racist. President Ronald Reagan institutionalized that kind of thinking in defense of South Africa’s apartheid regime. For him, Nelson Mandela was a terrorist, while the outlaw South African regime constituted a “democratic ally.”

Such thinking was also “normalized” during the affirmative action debate; those who attempted to dismantle the vestiges of racial discrimination were deemed “racists” or “reverse racists,” or communists by those working to maintain it. A reverse racist is precisely what Limbaugh labeled both Sotomayor and President Obama.

Those doing this labeling have well understood the nation’s changing political climate; they could no longer campaign as the defenders of white racial supremacy. Instead, they generally cloaked their views under the conservative-Republican mantle and wrapped themselves in the American flag.

They also knew that to win a debate required further subverting the nation’s political language. These same “patriots” began to reinterpret MLK Jr.'s quote about the dream of a color-blind society. In public, they gladly accepted the “dream” without accepting the societal responsibility of dismantling and remedying centuries of institutional racism and discrimination in this country.

While the majority of Americans can see through the false arguments and the “clever” subversion of the political language by these so-called patriots, this does not hold true for the mainstream media. As we are seeing with Sotomayor, all it takes is a handful of “extremists” to control and shape the media debate.

Perhaps the only upside is that Americans can now clearly see that the politics of Gingrich and Tancredo are the same as that of Limbaugh, Liddy, Beck, Buchanan and Dobbs. These pundits who daily rant against “illegal aliens,” and who daily clamor on the need to fortify the U.S.-Mexico border, are quoted as credible sources by the mainstream press. They are generally the same ones who promote the politics of fear and hate, who believe in the use of torture, and who also believe that the United States is endowed with the God-given right to conduct permanent war against the rest of the world.

Truthfully, who can discern a difference between these right-wing fanatics and the positions of mainline conservatives within the Republican Party?

Rodriguez can be reached at: XColumn@gmail.com

The Supreme Court ruled on 29 June 2009 that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination.

Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.