- The Washington Times - Wednesday, June 17, 2009

ANALYSIS/OPINION:

In his Purple Nation column “Sotomayor and the New Haven firefighters case: More myths than facts” (Nation, Monday) Lanny J. Davis purports to take on “five myths” about Judge Sonia Sotomayor and the New Haven firefighters case, but it is his discussion that is most mythological.

According to Mr. Davis, the fact that Judge Sotomayor joined a per curiam opinion somehow makes it “very misleading” to refer to it as her opinion. Yet, as he acknowledges, because it was a per curiam opinion, the judges joining it “all spoke together.” So how is this not Judge Sotomayor’s opinion?

Mr. Davis says it is wrong to portray Judge Sotomayor “as unsympathetic to the white firefighters” because she said in her opinion that she was “not unsympathetic” to them. Well, she would say that, wouldn’t she? Whatever her words, her actions denied the firefighters their rightfully earned promotions.

Next, Mr. Davis argues at some length that Judge Sotomayor’s position in the New Haven case is dictated by past court decisions and that it therefore is a myth to call her a “liberal activist.” However, relying on liberal activist precedents hardly makes one less of a liberal activist. Mr. Davis also is wrong to say that Judge Sotomayor was “strictly construing the underlying statute.” To reach the result she did, Judge Sotomayor had to ignore the general statutory ban on racial discrimination and at least two (and probably three or four) specific statutory provisions - as well as the Constitution, which Mr. Davis conveniently fails to mention, too.

Another myth, according to Mr. Davis, is that Judge Sotomayor’s ruling was supported by President Obama’s Justice Department. Here, he is correct that even the administration’s squishy brief says Judge Sotomayor got it wrong. But why is the fact that even the president’s own legal experts believe Judge Sotomayor’s opinion should be reversed supposed to reassure us about her?

Finally, Mr. Davis suggests that the “better answer” to the plight of the New Haven firefighters “and other whites” who object to being discriminated against because of their race would be to “change the law - rather than legislating from the bench.” The statute Congress passed does protect both men and women and members of all racial and ethnic groups, and it forbids politically correct preferential treatment as well as discrimination of the old-fashioned variety. The problem is that the courts - led by judges who share Judge Sotomayor’s approach to the law - have not followed the text as written. What’s more, if and when legislation is ever proposed making clear that what happened in New Haven is wrong, the left will oppose that, too.

ROGER CLEGG

President and general counsel

Center for Equal Opportunity

Falls Church

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