From the Desk of Judicial Watch President Tom Fitton:
Supreme Court Overturns Sotomayor in Firefighter Lawsuit
Should the test results of firefighters seeking promotion be discarded simply because African American participants did not score as well as their white counterparts? Supreme Court nominee Judge Sonia Sotomayor said "yes" earlier this year while sitting on a federal court of appeals. However, in a stunning decision overturning Judge Sotomayor and her colleagues on the appellate court, the U.S. Supreme Court ruled on Monday that her decision was wrong (Ricci, et al. v. DeStefano, et al.).
Not only that, but the Supreme Court also noted the fact that Sotomayor’s appellate court dismissed the firefighters’ claims in a one-paragraph unpublished opinion, despite the fact that there were 2,000 pages of court filings related to the case.
The Supreme Court today narrowly ruled in favor of white firefighters in New Haven, Conn., who said they were denied promotions because of their race, reversing a decision by Judge Sonia Sotomayor and others that had come to play a large role in the consideration of her nomination for the high court.
The city had thrown out the results of a promotion test because no African Americans and only two Hispanics would have qualified for promotions. It said it feared a lawsuit from minorities under federal laws that said such "disparate impacts" on test results could be used to show discrimination.
In effect, the court was deciding when avoiding potential discrimination against one group amounted to actual discrimination against another.
In its 5-4 decision, the Supreme Court said this is exactly what happened when Sotomayor and her colleagues on the appellate court allowed city officials to invalidate the firefighters’ test results. Writing for the majority, Justice Anthony Kennedy stated: "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. The City’s discarding the test results was impermissible…"
Now, the question for the United States Senate is whether to confirm someone who thinks it is appropriate to discriminate based on race simply to protect oneself from a lawsuit.
Justice Alito, in a concurring opinion, noted that New Haven firefighters have "a right to demand…evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them." Judge Sotomayor clearly did not apply our nation’s anti-discrimination laws in an evenhanded way.
But, then again, should anyone be surprised by this?
The firefighter decision by Sotomayor is perhaps the most well-publicized, but by no means the only, occasion when the Supreme Court nominee has demonstrated a fondness for using the courts to favor one race over another. (Remember, we’re talking about a judge who spoke of a Latina woman’s judgment as being superior to a white male’s.)
I wonder, for example, what the High Court would say about two other specific lawsuits pushed by Sotomayor while she served as the "top policy maker" on the Board of Directors for the radical leftist Puerto Rican Legal Defense and Education Fund (PRLDEF). (Read our full report on Sotomayor and the PRLDEF by clicking here. And watch the educational panel we held regarding Sotomayor last Thursday by clicking here.)
In 1981, the PRLDEF supported a lawsuit that contended an entry level government test, known as Professional Administrative Careers Examination, had an adverse impact on the African and Hispanic Americans who failed the exam. The lawsuit argued the test, therefore, violated the 1964 Civil Rights Act of the failed candidates. Ultimately the government eliminated the exam and replaced it with an alternative "race-sensitive" version.
In 1988, the PRLDEF engaged in a battle with the New York City Police Department over its "racist" promotion exam, ultimately presiding over a radical redesign to allow more minorities to achieve a passing grade. According to The New York Times: "The new test, a four-part exam prepared with the help of an expert designated by the Puerto Rican Legal Defense Fund…involved changes in format, including the addition of open-book questions and a video portion."
Both as an activist and a judge, Judge Sotomayor has advanced a radical, race-conscious agenda through the courts. And it is increasingly apparent that Judge Sotomayor did not stop being an activist once she became a federal judge.
All of this provides further reason why the Senate should reject the Sotomayor nomination.
Don’t forget to let your senators know where you stand on the Sotomayor nomination. If your voice isn’t heard, Democrats will rush and rubberstamp the nomination while Republicans go AWOL. Contact the Senate at (202) 224-3121. Time is running out, as her confirmation hearings begin on July 13, 2009.
Obama Breaks Promise on Transparency — AGAIN
You may recall almost immediately after assuming the presidency Barack Obama boldly proclaimed, "Transparency and the rule of law will be the touchstones of this presidency."
These types of political proclamations usually mean very little. I recall Bill Clinton promised to run "the most ethical administration in the history of the country" when he took office. And we all know how that turned out. Former President Bush promised to give the Oval Office "a good scrubbing" when he ascended to the White House in 2001, and then proceeded to close the door on all investigations into Clinton corruption.
So now that we’re six months into the Obama presidency, how is Obama stacking up to his promises regarding government transparency? Not so good.
A couple of weeks ago, I told you that the Obama administration refuses to release White House visitor logs, claiming the information is privileged and confidential. Earlier this year, Judicial Watch had to force the Obama administration to turn over documents related to the government "bailout" of our nation’s financial institutions.
In February, the Obama administration said it didn’t have any documents at all. Pressure from Judicial Watch changed their minds, leading to the release of former Secretary Treasury Hank Paulson’s talking points for an important bank "bailout" meeting, among other key documents. However, the administration has yet to release current Treasury Secretary Timothy Geithner’s edited version of this blockbuster document.
During the presidential campaign, Barack Obama promised that once a bill was passed by Congress, the White House would post it online for five days before he signed it.
"When there’s a bill that ends up on my desk as president, you the public will have five days to look online and find out what’s in it before I sign it, so that you know what your government’s doing," Mr. Obama said as a candidate, telling voters he would make government more transparent and accountable.
When he took office in January, his team added that in posting nonemergency bills, it would "allow the public to review and comment" before Mr. Obama signed them. Five months into his administration, Mr. Obama has signed two dozen bills, but he has almost never waited five days.
Yet another broken promise.
As you know, Judicial Watch is the nation’s leading organization when it comes to using the law to force the government to release documents into the public domain. We’ve been doing this for nearly 15 years and through three presidential administrations. Few know the Freedom of Information Act (FOIA) open records process better than Judicial Watch litigators and investigators. And I can tell you this: The Obama administration may say the right things publicly but it is just as committed to secrecy as the Bush and Clinton administrations — perhaps even more so.
Obama administration officials delay and stonewall the release of documents through niggling administrative and bureaucratic means. They delay by pretending not to understand what the request means. They claim they need to consult with the White House before addressing requests, which is highly irregular. And they deny requests for silly, bureaucratic reasons that force us to go through a bureaucratic and time-consuming appeals process.
And when it comes to litigation, our lawyers see no difference between the FOIA litigation positions and tactics of the Bush and Obama administrations, period.
When it comes to transparency, the Obama administration is no better than the Bush administration – in fact, it is worse.
California Courts Undermine Federal Immigration Law
Communities across America, sometimes aided and abetted by the court system, continue to be outright hostile to federal immigration law. Los Angeles, California, is no exception.
On June 17, 2009, the California Court of Appeals dismissed Judicial Watch’s taxpayer lawsuit against the Los Angeles Police Department’s "Special Order 40" policy." (Judicial Watch, Inc. v The Los Angeles Police Department, et. al, Case No. BC349040).
Judicial Watch is now considering whether to appeal this decision to the California Supreme Court.
Many local police agencies, including the LAPD, believe that local law enforcement can best achieve its goal of crime prevention by making it known to the community that local law enforcement officers are unconcerned with immigration violations — thereby encouraging illegal immigrants to come forward with relevant information about crimes without fear of deportation…[The LAPD] chose to impose limits on its officers ability to investigate the immigration status of aliens with whom they come into contact.
The fact that Special Order 40 inhibits police officers from inquiring about an individual’s immigration status is a plain violation of the law. And Judicial Watch demonstrated through discovery that Special Order 40, as practiced, prohibits LAPD officers from communicating with federal immigration authorities. According to Judicial Watch’s Opposition to Motion for Summary Judgment filed last year:
Deputy Chief Brennan testified that it would be inconsistent with LAPD’s policy for an officer to notify federal immigration officials about a person’s immigration status "just for any purpose." He agreed that, if an officer just happened to learn, unrelated to a criminal investigation, that a person was an illegal alien, the officer would not refer that person to federal immigration officials.
Moreover, an independent review panel, at the request of the LAPD Board of Police Commissioners confirmed: "…In practice, LAPD officers do not routinely notify INS [now ICE] about the immigration status of individuals who have not been arrested."
This is all a clear and direct violation of federal immigration law, which states: "…a Federal State, or local government entity or official may not prohibit, or in any way restrict [emphasis added], any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service (now Immigration and Customs Enforcement) information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
Our lawsuit in Los Angeles has helped galvanize public opinion against Special Order 40 and in favor of the rule of law. Los Angeles politicians are under significant pressure to do the right thing and reform Special Order 40. And while Judicial Watch has not yet prevailed in its Special Order 40 litigation, we have successfully argued against these types of sanctuary policies in the courts.
For example, Judicial Watch earned a huge court victory against the City of San Francisco when an appellate court ruled that the San Francisco Police Department must comply with a state law requiring police officers to notify federal authorities when they arrest a person for various narcotics offenses whom they suspect to be an alien, legal or illegal [Fonseca v. Fong, Case No. A120206]. (We have a similar, pending challenge against the Special Order 40 sanctuary policy.)
There is no question the law is on our side and our lawyers will consider the legal options in the Special Order 40 matter. In the meantime, we will continue to battle aggressively across the country against these illegal alien sanctuary policies.
Please accept my best wishes for a wonderful Independence Day holiday.
Until next week…
Tom Fitton President
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