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RUSH: I have a couple things written here by Alito, who wrote a concurrence with Kennedy’s majority opinion. By the way, the majority opinion was joined by Scalia and Clarence Thomas as well. Now, here’s what Justice Alito wrote, essentially on Judge Sotomayor’s failure of impartiality. ‘Petitioners,’ meaning the firefighters,’ ‘were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual.

‘The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is ‘unfortunate’ and that they ‘understandably attract this Court’s sympathy.” That’s the opinion that was written at the Second Circuit when they granted summary judgment against the firefighters (the white firefighters) and for the city of New Haven. But, see, this gets to the whole point of Sotomayor. Obama has said, ‘Well, we need people with empathy.’ No, we don’t! We got Judge Sotomayor and her other colleagues in this court… Don’t forget that she was reprimanded by one of them, Jose Cabranes, for not even looking into the constitutional issues of this. The libs today, the State-Run Media, are trying to say, ‘It wasn’t Sotomayor. She never wrote anything. It was a whole panel of the Second Circuit.’

That’s the whole point. Nobody wrote one. And Jose Cabreras said, ‘This case is a constitutional case and you didn’t even deal with that. It was horribly done.’ So, as Alito notes here, ‘The dissent grants that petitioners’ situation is ‘unfortunate’ and that they ‘understandably attract this Court’s sympathy.” Now, this is the Ginsburg opinion and so forth. But you see ‘sympathy’ is not what people who go before courts want. They want access to the law. They want access to justice. They do not want sympathy. So what we have here is that Sotomayor and her gang and then Justice Ginsburg said that the ‘petitioners’ situation,’ meaning the white firefighters, ‘is ‘unfortunate’ and that they ‘understandably attract this Court’s sympathy.”

No! That’s not why anybody goes before a court. What do you win when the court feels sorry for you but they still rule against you in violation of the Constitution? They have a right to demand access to the law, and they didn’t get it. They didn’t get it at the Second Circuit, and they really didn’t get it from the dissent here at the US Supreme Court. Although, I’ve talked to a legal beagle about this morning, and as you know, Scalia, in his concurrence — well, you may not know. Scalia in his concurrence says that there’s a day of reckoning coming, and that is the equal-protection clause cannot co-exist with federal laws that find discrimination based on disparate impact rather than unequal opportunity. And the court didn’t have to decide that question to resolve this case and it’s going to have to decide it at some point. So what happened here in this case is that the majority decided the case strictly on statutory grounds under Title VII of the 1964 Civil Rights Act.

‘The majority held that under the statute, an employer cannot refuse for race based reasons to enforce the results of a test just because it might be sued. It can only refuse it if it can show that it would probably be held liable if sued. The court also said that under the legal principles of the Civil Rights Act, New Haven would not have been held liable and therefore the firefighters win the case.’ So because this case could be resolved strictly and narrowly under the statute, the court said it didn’t need to consider what is the constitutional question: Do federal laws that call for disparate impact analysis violate the equal-protection clause of the Fourteenth Amendment? And, of course, there are wide and varying opinions on this and the… I’m not trying to throw cold water on this. It was the right decision. But Scalia is pointing out here that the day of reckoning on the big question is still ahead. We punted.


RUSH: Now, the Sotomayor case. I want you to hear the State-Run Media describe the bad news. There’s no question Sotomayor was overturned. Her court decided in favor of the City of New Haven and the black firefighters that didn’t score as well on tests. Summary judgment without a trial, and they have been upbraided for this by not only the majority in the Supreme Court today (it was Anthony Kennedy’s opinion) but also by Ruth Bader Ginsburg in the dissent. And this is why brilliant legal analysts are saying this decision when you get down to it is actually 9-zip, not 5-4 when you look at some of the things that Ginsburg wrote about the mistakes and not even hearing the case, not even taking the constitutional questions. And the reason for this is… I go back to what I said at the beginning, and I stand by this.

Sonia Sotomayor was following her basic instincts. She is racist, in her own words. Remember she’s out there and has said a number of times that a Latina woman would bring much richer and diverse experience to the court than a white male would. That’s racist, pure and simple. And she had ‘sympathy’ and so did the dissenting opinion in the Supreme Court, for the white firefighters, but that sympathy wasn’t enough. She ruled on the basis of just a racist belief that minorities should always be found in favor of simply because they’re minorities, pure and simple regardless the merits of any particular case. That’s who Obama has nominated. Now, the State-Run Media here is desperate to spin this any other way. Here’s Jeffrey Toobin on CNN this morning. Question: ‘Obviously there was a lot of questions about this case. We first heard her name, saw the nomination come. One of the first things that came up: ‘Hey, what’s going to happen with this New Haven thing?”

TOOBIN: The five conservatives on the court have overruled the decision that Judge Sotomayor endorsed. That was her decision. So certainly there will be critics who say that she was overruled by the Supreme Court. But four justices were on her side including, of course, David Souter, whose last date is today.

VOICE: Yeah!

TOOBIN: It’s not like her position was so far out of the mainstream out of this case.

VOICE: Mmm-hmm.

TOOBIN: She got four justices to agree with her.

RUSH: In the end she didn’t, and I don’t want to be too technical here because 5-4 is 5-4; ideological grounds are ideologically grounds. At the end of the day, the Supreme Court overturned Sonia Sotomayor and her colleagues on the Second Circuit. But if you get into the dissent by Justice Ginsburg, you will find — and you have to have a lawyer explain this to you because she writes this in legalese. But I of course have a cadre of legal advisors who assure me that the way to translate what Ginsburg said was that it was a mistake just to grant summary judgment here. And, by the way, also part of this is the black firefighters cannot sue the city of New Haven now. They cannot sue them as a countermeasure to what happened here today. So you might say 5-4, but this was really a slam dunk and it’s not good news for Sonia Sotomayor, not that it’s going to matter a hill of beans. Also on PMSNBC this morning during the breaking news Pete Williams reported this.

WILLIAMS: The Supreme Court did reference a decision which Sonia Sotomayor joined from the Court of Appeals in New York. She voted to vote with the city. But I think some people will say, ‘Well, this is a reversal of what she did.’

RUSH: Yeah, it is a reversal of what she did. And what she did was outrageous. She ignored the constitutional questions involved. She ignored the factual evidence of the case and she voted to decide this in summary judgment without giving the firefighters a trial, or even a hearing. And everybody on the Supreme Court found that a lot odd today, is the bottom line. Also on MSNBC ‘Live’… (laughing) I’ll tell you how bad this network is getting, what bad shape they’re in. They have a special guest today, Dan Rather. I guess (laughing) when your credibility is in the toilet like MSNBC’s is and having somebody like Rather on can give you a lift, you gotta be pretty low. So the question to Dan Rather: ‘Sotomayor will obviously be careful through this process. My sense is, given her record in the past, we’ll hear more from her than we do from most Supreme Court justices, Scalia being the exception. He sometimes speaks publicly.’

RATHER: Justice Scalia has been very outspoken. He’s been very aggressive and those who like him and liked his appointment to the court say, ‘Right on.’ As time goes along, I wouldn’t be surprised to see her become an active, aggressive, articulate, uhhh, and vocal opposition, uh, to Judge Scalia. That will be something to watch as the years go by.

RUSH: That’s just hilarious. I mean, if you’re Dan Rather you might want to sit there and, you know, try to curry favor with women by talking about this Sotomayor as some sort of intellectual giant. But let me just tell you, folks: In a contest of intellectuals between Sotomayor and Scalia, they would cancel the game before it began or they’d have to spot her 50 or 75 IQ points if they played the game the way we do high school or Pop Warner football — you know, youth league football — where the good teams get penalized for being good.


RUSH: I am reminded of a key element in this whole Sonia Sotomayor fiasco, and that is that she said — do you remember this? — she said that her college and SAT and LSAT scores were nowhere near as good as her classmates’ at Princeton and in law school, she said because the tests were culturally biased, and she said that everybody knows that. I guess they must be biased against people who grow up in the Bronx with a hardworking educated nurse mother, we got the sob story about how hard her mother worked to put her through school and gave up everything, all these conservative values she cited that got her where she went, and then she says, hey, you know, my own tests I didn’t do well because they were cultural biased and so I’m sure she’s racist at heart. I mean there’s no other way to put this. It is what it is. And political correctness be damned, I’m not going to shy away from it.

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