Judge Sonia Sotomayor’s Testimony and Labor and Employment Law

We’ve looked at Judge Sotomayor’s confirmation hearings. We’ve looked at her general testimony before the Senate Judiciary Committee. Now it’s time to look at what her testimony says about her impact as a probable Supreme Court Justice on labor and employment law. The answer is not much.

The Committee focused on only two primary points that gave Sotomayor the chance to comment on matters related to labor and employment law. I’ve previously reviewed all the substantive labor and employment cases decided by Sotomayor as a federal district court judge and all of the substantive opinions she authored on labor and employment law as a member of the Second Circuit Court of Appeals. The Committee was concerned with only one of them, Ricci v. DeStafano, a case recently reversed by the current U.S. Supreme Court.

Ricci is the so-called New Haven firefighters case in which the Supreme Court ruled in a 5-4 decision that the city of New Haven had committed race discrimination against white firefighters by throwing out promotion test results because it was believed that the results had a disparate impact on African-American and Hispanic candidates for officer positions. The Court determined that the city had used its concern about being sued by African-Americans and Hispanics for disparate impact race discrimination to, in fact, engage in disparate treatment (direct or intentional) race discrimination against whites.

Sotomayor explained that when the three-judge Second Circuit panel she was on decided Ricci, they were relying on then Supreme Court and Second Circuit precedent. In other words, they applied the law as it existed. When the Supreme Court decided Ricci, it set a new standard, a standard which she now regards as the Court’s precedent and which she’s bound to follow.

Republican senators on the Judiciary Committee questioned whether Sotomayor’s Second Circuit panel was actually following precedent, a point made debatable by other Second Circuit judges (one in particular) who thought that the case should be reheard by the entire Second Circuit because there was no precedent for the issues raised in Ricci. Republican senators wondered if Sotomayor’s decision in Ricci was an indication of her application of “identity politics” to discrimination cases. To oversimply, did her Puerto Rican heritage make it difficult, if not impossible, for her to rule against minority groups?

As noted above, the question of whether there was precedent for Sotomayor’s initial decision in Ricci was debatable. There were Supreme Court and Second Circuit cases she could point to as precedent, and it was also arguable that these cases didn’t establish precedent. In any event, she could legitimately take the position he did. She also assured the Senate Judiciary Committee that identity would never be the basis of her judicial decisions. Democratic Senators and Judge Sotomayor repeatedly referred to the large body of cases decided by Sotomayor as a district court and appellate judge as a demonstration that her Latino background never influenced her court rulings.

For all the talk about Sotomayor’s body of judicial decisions, she was asked questions about very few of her labor and employment decisions. One case that I thought would have provided an excellent discussion point, once the question of identity politics (also called by some as using “empathy” for a particular minority group to decide a case instead of the law) came up, was Cartagena v. Ogden Services Corp., 995 F. Supp. 459 (SDNY 1998), a case I reviewed in one of my previous posts.

In Cartagena, the employee claiming national origin discrimination was of the same ancestry as Judge Sotomayor, Puerto Rican. He had the same supervisor for four years. The employee began to make somewhat significant mistakes at work because of being distracted by personal problems at home. The supervisor counseled him. The supervisor warned him. The supervisor then fired him.

The employer asked Judge Sotomayor to dismiss the case via summary judgment. Clearly, said the employer, there was a legitimate, non-discriminatory reason for the employee’s discharge: poor job performance. In rejecting the employer’s request, Sotomayor said that even if part of the reason was job-related, the employer could still be liable for discrimination if another part of the reason was the supervisor’s discriminatory animus toward the employee.

The only evidence of the supervisor’s discriminatory animus was the employee’s allegation that while the supervisor was counseling and warning him about his poor job performance, the supervisor had twice referred to the employee as a “f***ing Puerto Rican.” Another allegation on which Sotomayor relied was that the supervisor sometimes said to all employees, “You f***ing guys can’t do the job right.” If anything, this latter allegation would seem to cut against the employee’s claim of discrimination. The supervisor used profanity regarding all employees, not just Puerto Ricans.

Moreover, during the employee’s four years of employment, the supervisor had given him good performance reviews. It was undisputed that his job performance had declined and that he had been given a chance to correct it. It would have been correct to find that the employee’s discrimination claim wasn’t worthy of a jury trial but should be dismissed as the employer requested. Simply put, it was incredible that after four years of harmonious relations, the supervisor had suddenly become a bigot.

As I’ve previously noted, Judge Sotomayor preferred that cases be decided by a jury rather than in summary fashion by a judge. She did, however, occasionally grant motions for summary judgment, and if there was ever a case suited for summary judgment, it was Cartagena.

This ties in to the Ricci case and questions about Sotomayor’s acceptance of identity politics in deciding cases for at least two reasons. First, summary judgment had been granted to the city of New Haven by the district judge in Ricci. Even some of the dissenting Supreme Court justices found the use of summary judgment as a way of deciding Ricci to be inappropriate. Based on Sotomayor’s record as a district judge, it’s quite surprising that she would have upheld the lower court’s summary judgment in Ricci. The issues were about as complicated as they get. To say that there weren’t genuine questions of material fact in Ricci necessitating a full-blown trial, especially when compared with the Cartagena case, is almost preposterous.

Second, the employee in Cartagena was Puerto Rican. Sotomayor is Puerto Rican. With such thin support for allowing Cartagena to go to trial and such voluminous support for allowing Ricci to go to trial, could Judge Sotomayor be rightly said to use identity in deciding cases? Could it be said that her empathy for minority groups is apparent? She would have, of course, denied this, and Democratic senators would have rushed to her defense and accused their Republican colleagues of recklessly impugning the integrity of Sotomayor.

I’ve previously expressed the belief that Sotomayor’s labor and employment cases as a district court and appellate judge are relatively neutral. One can’t read her opinions and come away thinking she’s clearly pro-employee or pro-employer. But questions about Cartagena as compared to Ricci would have been absolutely legitimate. Sotomayor’s explanation would have likely been similar to the explanations she offered to other questions about seeming contradictions. The important difference would have been that the Cartagena/Ricci questions would have been about arguable contradictions in her cases, not contradictions in her speeches as compared with her cases.

In addition to the Ricci questions, the other point addressed by the Senate Judiciary Committee to possibly open a window into Sotomayor’s thinking about labor and employment issues was her use in five or six speeches of the “wise Latina woman” comment. She said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life.”

Sotomayor explained that this statement had been misunderstood. She tried to place it in the context she intended. She regretted any offense this statement may have caused. She admitted she would never use those words today.

Although this statement came up a lot during Sotomayor’s confirmation hearings, the Democratic senators readily accepted Sotomayor’s explanation. Republican senators pressed a bit, particularly about her strained account of how she wasn’t using her wise Latina comment to disagree with former Justice Sandra Day O’Connor’s statement about a wise old man and a wise old woman reaching the same decision in a case. For whatever reason, however, Republicans decided to just point out the differences between the two statements, let Sotomayor try to explain, and then move on without much in the way of follow-up questions.

The only senator to press harder was Lindsey Graham. The point that Graham made but really didn’t follow-up on was this. If he or any white male had said, “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life,” he would have been ridiculed, run out of public office, labeled a racist, and never been nominated for a position on the Supreme Court.

As I recall, Sotomayor acknowledged the truth of what Graham was saying but never addressed why she should be given a pass about her wise Latina woman comment when a white man making a similar statement would be run out of town. It seemed to me that this was the perfect time to at least attempt to drill into Sotomayor’s thinking on race, discrimination, social justice and the like. Given her answers to other questions, it’s unlikely that the drilling would have produced much, but more probing questions should have been asked.

Based on Sotomayor’s judicial record, I’m still where I’ve always been. She seems to have taken a balanced approach in the labor and employment cases she’s decided.

Based on her testimony before the Senate Judiciary Committee, her statements about balance and neutrality seemed canned rather than answers to tough questions. She didn’t answer some significant questions or gave non-answers, but that would have to be said for the testimony of now Chief Justice Roberts and Justice Alito. She never said she was wrong to have made the wise Latina woman comment. She acknowledged the precedent of the Supreme Court’s decision in Ricci but never expressed appreciation for looking at the issue of race in the new way Ricci now demands.

Well, I’ve written way too much on all this, particularly given the fact that Sotomayor will be soon endorsed by the majority of the Judiciary Committee and confirmed by a majority (probably a large majority) of the U.S. Senate. In my opinion, there’s much more positive than negative about her. The problem is that on day four of her confirmation hearings, we had learned almost nothing that we didn’t know on day one.

She did promise to be a fair justice. She promised to respect the Constitution. She promised to consistently apply the rule of law (whatever that means) in deciding cases. Those are promises made by all the other justices on the Supreme Court during their confirmation hearings. Funny how they keep reaching different conclusions, isn’t it?