As Glenn Greenwald put it, in the first of four points about the ruling:
In light of today’s ruling, it’s a bit difficult — actually, impossible — for a rational person to argue that Sotomayor’s Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel’s ruling; and now: (d) four out of the nine Supreme Court Justices — including the ones she is to replace — agree with her.
Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It’s perfectly reasonable to argue that she ruled erroneously, but it’s definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.
Glenn gives Sotomayor’s opponents too much credit. Here is Steve Benen quoting Wendy Long making exactly that claim:
Wendy Long, head of the Judicial Confirmation Network, which apparently exists for no other reason than to attack Democratic judicial nominees, quickly issued a statement this morning with the headline: “Not Even One Justice Approved Sotomayer In Ricci Case.” Yes, even now, Wendy Long can’t spell “Sotomayor.” The press statement went on to say:
“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error.”
Soon after, on a Federalist Society conference call with reporters, additional conservative activists emphasized a similar line.
Roger Clegg of the Center for Equal Opportunity suggested that the ruling “gives the Senate Judiciary Committee a lot to ask about” and that it brings to light her past statements on this issue.
He was joined by Gail Heriot, a professor at the University of San Diego School of Law in the insistence that each of the nine Justices had rejected Sotomayor’s reasoning in her Second Circuit decision.
There’s a variety of problems with all of this, but the most obvious is the fact that the Ricci ruling was 5 to 4, not 9 to 0. Even if Wendy Long & Co. hoped to exploit the ruling to attack Sotomayor — itself a dubious proposition — they should have at least checked to see that there was a dissent, endorsed by four justices.
Raise your hand if you think Long, Clegg, or Heriot actually read all 93 pages of the ruling before sharing their analysis of the decision with reporters.