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Ricci Reactions from Heartland:

The Heartland Institute rounds up reactions to Ricci v. DeStefano, and the case's relevacne to Judge Sotomayor. Comments from Professors Ronald Rotunda and Rick Esenberg, Ilya Shapiro (Cato), Maureen Martin (Senior Senior Fellow for Legal Affairs, Heartland), and me, among others.

Steve:
It's kind of amusing that the first expert quoted by the linked press release is the person who wrote the press release.

It's less amusing to see some of the hackishness in the responses. I don't know if people think they look like more credible legal analysts when they argue that Sotomayor's ruling against the white firefighters is consistent with her characterization of herself as an "affirmative action baby," but they really don't. And while I have no problem with the belief that government should not consider race in any way in making hiring decisions, obviously the case doesn't stand for that proposition and it's disappointing to see more than one of the commentators pretending that it does.
7.1.2009 3:35am
Laura(southernxyl) (mail) (www):
Thanks, Daryl, now I don't have to wonder about powerleveling all day, because I was not going to click on that link.
7.1.2009 7:49am
jrose:
In addition to agreeing with Steve on the general hackishness of this article, the attacks on Sotomayor are particularly snarky.

Kopel's charge that the lengthy opinions imply both sides believe Sotomayor was dishonest and unethical is the worst. The opinions were lengthy because they laid out new standards. Yes, the Court of Appeals could have delved into these new issues. But just as well, it is fine if they did nothing more than apply existing precedent. If Kopel is correct, why didn't either side take the Court of Appeals to task?

Likewise, the implication that Sotomayor was repudiated 9-0 because all nine justices disagreed with the Second Circuit's test is nonsense. It was the precedent that was repudiated, not the Court of Appeals.
7.1.2009 8:03am
Floridan:
Maureen Martin: "Legal experts contacted by The Heartland Institute applauded the Court's decision."

Captain Renault: "Round up the usual suspects."
7.1.2009 8:04am
KilgoreTrout_XL (mail):
"This activist judging should be grounds for the Senate to refuse to confirm Sotomayor, but it may not be."

I think these kinds of comments are a little silly, but I think the end result was correct.

Anyways, Kennedy changed the test to resolve these kinds of conflicts on Page 25, as far as I can tell. Wouldn't that normally let the circuit court off the hook regardless of the outcome in the SCOTUS?

Also, Warcraft > LOTRO, according to a guy I know. Seriously, I don't play that stuff, really.
7.1.2009 8:10am
Owen H. (mail):
I asked before, is this the very first time that a judge's decision has been overturned by the SCotUS, who then went on to be appointed to the Court? No Justices ever had had a decision overturned?

Sotomayer wasn't the only judge to rule the way she did, and she is hardly the first judge to have a decision overturned. So I'm still waiting for an explanation as to why this particular case is considered unique, and meaningful.
7.1.2009 8:21am
ArthurKirkland:
What kind of person calls herself a "legal expert?"

In other words, does anyone know this Maureen Martin?
7.1.2009 8:34am
Desiderius:
Kilgore_Trout,

"Also, Warcraft > LOTRO, according to a guy I know. Seriously, I don't play that stuff, really."

I'm waiting for the public option so someone else can pay for my powerleveling.
7.1.2009 9:46am
Pyrrho:
You would think a serious libertarian group rounding up expert opinions would care what David Epstein has to say.
7.1.2009 10:34am
Soronel Haetir (mail):
Owen H,

The main complaint, just as the denial of rehearing stated is that the panel did not treat this very serious issue with anything approaching appropriate weight. I do believe that rehearing dissent that the panel wanted to hide this particular case.

Voting present on such a matter just feels like she doesn't take her job seriously enough. A PC order can still have dissents.
7.1.2009 11:51am
RPT (mail):
How impressive to see that Ayn Rand and Ludwig Von Mises do not like Judge Sotomayor. But nice to see the new conservative definition of activist, per Martin: trying to "deep six" a case, and failing to write an opinion on a new issue in order to show off her scholarship to the USSC. Everyone's an "expert" in the Heartland.
7.1.2009 12:07pm
GMUSOL05:
Just like that, I'm a level 80 orc law blog commenter.
7.1.2009 12:10pm
Owen H. (mail):
Soronel- as far as I can see, that isn't the complaint, but rather that she was "wrong" in general. The fact that she was not alone seems to fall by the wayside.
7.1.2009 12:48pm
A. Zarkov (mail):
Owen H.

Sotomayer wasn't the only judge to rule the way she did, and she is hardly the first judge to have a decision overturned. So I'm still waiting for an explanation as to why this particular case is considered unique, and meaningful
That's a reasonable question. Here's my take on it. Sotomayor and this case get attention because her nomination and the SCOTUS decision came at about the same time. She pretty much dismissed the case as unimportant-- just listen to a recording of the hearing. She could have simply sent it back for a trial on the merits. She's also on record as supporting affirmative action.
7.1.2009 1:13pm
Owen H. (mail):

She's also on record as supporting affirmative action.

So am I. So what? Oh, I forgot, that's bad. Too bad you guys lost the elections.
7.1.2009 1:32pm
luagha:
Not only was Sotomayor 'wrong' but the real crime is that she failed to add value. It's theoretically her job to add some value at her level, especially in a difficult case like this. As amply demonstrated by both sides at the Supreme Court level, there was a lot of value to add.
7.1.2009 1:42pm
Libertarian1 (mail):
She's also on record as supporting affirmative action.


So am I. So what? Oh, I forgot, that's bad. Too bad you guys lost the elections.



IANAL. Does losing a Presidential election now mean we no longer have a Constitution? So the election of President Obama mans equal protection is no longer the basic law of the land?
7.1.2009 2:35pm
Pyrrho:

So the election of President Obama mans equal protection is no longer the basic law of the land?

No, but it does mean that Obama gets to nominate people to the Supreme Court, last time I checked.
7.1.2009 3:28pm
Crunchy Frog:

Just like that, I'm a level 80 orc law blog commenter.

Yes, but your First Aid and Fishing skills are woefully deficient.
7.1.2009 3:36pm
Cornellian (mail):
Yes, but your First Aid and Fishing skills are woefully deficient.


Reading Volokh Conspiracy is a nice way to spend time time while undertaking the otherwise boring task of skilling up Fishing.
7.1.2009 3:48pm
Cornellian (mail):
Also, Warcraft > LOTRO, according to a guy I know. Seriously, I don't play that stuff, really.


World of Warcraft > Everything.

Or so I've heard . . .
7.1.2009 3:49pm
Cornellian (mail):
She's also on record as supporting affirmative action.


As did the Bush administration.
7.1.2009 3:50pm
Cato The Elder (mail):
I have no problems with elite leftists who continue to defend the dissent's reasoning in the Ricci case. None whatsoever. When even Kossites are shocked at the mendacity of that reasoning, I can imagine that there are some distinct political benefits for the Republicans to realize.
7.1.2009 4:00pm
Cato The Elder (mail):
That's probably why Sotomayor chose to try to bury the case in the first place. Far-sighted woman.
7.1.2009 4:04pm
theobromophile (www):
IANAL. Does losing a Presidential election now mean we no longer have a Constitution? So the election of President Obama mans equal protection is no longer the basic law of the land?

When the Dems got smoked in 2004, dissent became the highest form of patriotism. When the GOP got smoked in 2008, "you lost and we won" became the new mantra.
7.1.2009 4:18pm
Floridan:
Cato: "I can imagine that there are some distinct political benefits for the Republicans to realize."

Which, I would guess, accounts for about 95 percent of the comments on this issue.
7.1.2009 5:15pm
Cato The Elder (mail):
Oh, woe be upon me for injecting such base political considerations into the conversation. Woe, and a sack of ashes upon my head and brambles upon my feet! After all, the repeated appeal of leftists to public opinion polling, when they discuss the "public option" and don't give a plausible mechanism that details how exactly the government could control medical costs, firmly elevates them as the upright paragons of righteousness and truth!
7.1.2009 5:25pm
Really? Really? (mail):
"Rounds up" opinions? Sure, if by rounds up you mean survey people with the same judicial thinking, offering no critical legal analysis or diversity of thought. Round up? Reads more like political talking points devoid of real, meaningful, useful insight. A round up would be a selection of scholars from the Federal Society, ACLU, ACS, Judicial Watch, etc.
7.1.2009 9:06pm
Psalm91 (mail):
"CTE:

I have no problems with elite leftists who continue to defend the dissent's reasoning in the Ricci case."

I thought you anti-AA good old days guys favored the "elite" aka the best, most qualified, etc. I suppose you were just kidding. Certainly the self-proclaimed expert Heartland people are not in the "elite" category.
7.1.2009 10:41pm
Alan K. Henderson (mail) (www):
In the wake of the SCOTUS Ricci ruling, I can hardly wait for that moment in the confirmation hearings when some senator asks Sotomayor if she'll adhere to precedent.
7.2.2009 12:12am
Eli Rabett (www):
Of course, her answer will be which precedent? Not likely, but it would be a good thing
7.2.2009 9:46am

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