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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 1, 2009
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Topic category:  Government/Politics

Why Obama Nominated Sonia Sotomayor Instead of Stuart Taylor (and Should Not Have)

So much for the canard that Sotomayor is a careful jurist in the judicial mainstream deserving of elevation to the United States Supreme Court!

Judge Sonia Sotomayor, America's best known female Hispanic judge, and Stuart Taylor, America's best legal commentator, each received a B.A. from Princeton.

I don't know the SAT scores of either of them, but I suspect that Taylor's increased his class's average and Sotomayor's dragged her class's average down.

Of course, Sotomayor would have an explanation for that: racist testing!

Sotomayor, a self-described "perfect affirmative action baby," moved on to Yale Law School, where she was an editor of the Yale Law Journal.

Taylor moved on to Harvard Law School, where he was an editor of the Harvard Law Review (President Obama was the first African-American to lead it).

Taylor never had a shot when Justice David Souter announced his intention to retire, because Taylor is a middle-aged white male and Obama wanted a middle-aged Hispanic female.

Sotomayor was Obama's "perfect affirmative action baby."

Taylor was not.

Unsurprisingly, Sotomayor and Taylor do not share the same view of affirmative action.

In a December 17, 2008 post titled "Let's See Where Obama Stands on 'Reverse Racism'!," I wrote about a very persuasive article by Taylor urging United States Supreme Court review of the New Haven firefighters case, subsequently accepted for review and reversed this week.

Note: The mainstream media is reporting the decision as 5-4, but, on the question of whether Sotomayor and two other liberal federal appellate judges had applied the appropriate standard in granting summary judgment against the firefighters, ALL NINE JUSTICE AGREED THAT THEY HAD NOT.

That shows how extreme Sotomayor really is.

My article began:

"National Journal's Stuart Taylor is ready to find out whether his hope with respect to the President-Elect is realistic.

"The title to Mr. Taylor's latest article--'New Haven's Injustice Shouldn't Disappear'--shows where Mr. Taylor stands on a certain case.

"The subtitle--'The Supreme Court should agree to hear the case of a firefighter who was denied a promotion because he is not black'--succinctly states the issue in the case.

"Mr. Taylor: 'I suspect that deep down, Obama would appreciate the simple injustice of the New Haven firefighter case. It would be most interesting to find out.'

"With all due respect, the President-Elect could appreciate that, yet opt to do nothing about it.

"What is most important is what is done, or not done."

What did Obama do?

He nominated Sotomayor to the United States Supreme Court.

Don't be hypnotized by Obama's smartly written and smoothly delivered public statements.

Look at what he actually does.

Taylor's terrific article on the Supreme Court reversal, "Justices Reject Sotomayor Position 9-0 -- But Bigger Battles Loom," opens with a statement that the reversal "does not by itself prove that the Sotomayor position was unreasonable."

Taylor did not rely on "the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black " and focused on the other four justices.

Those four justices disappointed Sotomayor and left her way out in Far Left field.


"What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a 'disparate-impact' lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.

"This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: 'Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion' by U.S. District Judge Janet Arterton.

"....even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related."

Justice Ginsburg appears to be eager to have Sotomayor join her among the Supremes, but, as she had in Tasini v. New York Times, she concluded that Judge Sotomayor had wrongly granted summary judgment.

Like freelancers wronged by Sotmayor in Tasini, firefighters wronged by Sotomayor finally prevailed in the United States Supreme Court.

Taylor: "Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base."

"The Sotomayor panel" had spared Mayor DeStefano, a liberal Democrat, the possible embarrassment of an adverse verdict.

Taylor dispassionately displayed the fallaciousness of the approach of "the Sotomayor panel":

"Disparate-impact law, as codified by Congress in 1991, specifies that an employer whose qualifying exam or other selection criterion produces racially disparate results can be held liable for unintentional discrimination only if (1) the test is not 'job-related... and consistent with business necessity,' or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact.

"Contrary to the Sotomayor-endorsed opinion, the Ginsburg dissent states (on page 19) that an employer's decision to jettison a promotional test under circumstances like this case would be legal only if the employer had 'good cause to believe the [test] would not withstand examination for business necessity.'

"Ginsburg added (on page 26 and page 33) that 'ordinarily, a remand for fresh consideration' would be proper because the lower courts (including Judge Sotomayor) had not carefully considered the evidence of 'pretext' and racial politics."

So much for the canard that Sotomayor is a careful jurist in the judicial mainstream deserving of elevation to the United States Supreme Court!

Taylor acknowledged that the four justices for whom Justice Ginsberg wrote would have decided against the firefighters on the merits, but explained that Sotomayor and her supporters should find little solace in that:

"To be sure, Justice Ginsburg also found (against the clear weight of the evidence, in my view) that New Haven did have good cause to believe that the test was invalid. She also said that if ether party was to be granted summary judgment, it should have been the city, and that the Supreme Court majority had erred in awarding summary judgment to the high-scoring plaintiffs.

"But as a matter of law, the difference between the Sotomayor position and the Supreme Court dissenters' position is nonetheless important and revealing.

"Both, in my view, would risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.

"But while Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores."


It should be noted that Sotomayor admittedly did not distinguish herself on objective tests and apparently allowed her antipathy for such tests (and empathy for those who did not do well on them) to dictate her extreme decision.


"...racially disparate scores on virtually all objective tests are unfortunately the norm, not the exception. It's not hard to understand why: Studies have long showed that because of unequal educational opportunities and cultural differences, the average black high-school senior has learned no more than the average white eighth-grader -- and considerably less than the average white senior.

"Of course, this would be no justification for basing promotions on test scores that have little relationship to the requirements of the job. But the New Haven exam was clearly job-related and carefully developed to insure race-neutrality, as the majority opinion of Justice Anthony Kennedy detailed.

"To be sure, as Ginsburg argued, alleged imperfections in the New Haven test were attacked by black firefighters, city officials, and others after the fact. But every written and oral objective test ever devised can be similarly attacked as imperfect. If the law were as Judge Sotomayor ruled, no employer could ever safely proceed with promotions based on any test on which minorities fared badly."

The notion that the test must be at fault if the result is not favorable may comfort Sotomayor and those who think like she does, but it is not necessarily true.

Taylor set forth the thoughtful and thought-provoking suggestion that confirmation of Sotomayor would delay the realization of Dr. Martin Luther King's dream.


"The broader questions lying behind the New Haven case are whether this nation will ever get beyond racial preferences and quotas such as those encouraged by both the Sotomayor and the Ginsburg positions, and whether it will ever realize Dr. Martin Luther King's dream of a nation where people are judged not by the color of their skins, but by the content of their characters.

"Justice Ginsburg's prediction that the New Haven decision 'will not have staying power' seems to reflect a conviction that the nondiscrimination ideal articulated by Dr. King should be put on hold for the indefinite future, if not forever. Judge Sotomayor's position in the case, and some of her off-the-bench pronouncements, suggest the same even more strongly."

Finally, Taylor concluded: "President Obama's campaign rhetoric about getting away from identity politics and racial spoils seemed to promise something rather different."

As I wrote last December:

"Mr. Taylor thinks that the President-Elect would be moved by the injustice in the [firefighters] case, but his kind of appointees would not be.

"'Most working- and middle-class white Americans don't feel that they have been particularly privileged by their race,' Obama said in his much-acclaimed March 18 speech about race. 'So when they ... hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed ... resentment builds over time.'

"So it does. But based on Obama's record and the views of the civil-rights specialists on his transition team, there is every reason to worry that he will appoint civil-rights enforcers, judges, and justices bent on perpetuating the race-based discrimination against whites (and Asians) in many walks of life that is exemplified by the New Haven firefighter case."

"Let's find out!"



Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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