Hayes declares four Supreme Court justices "outside the mainstream"

››› ››› JULIE MILLICAN

Stephen Hayes claimed that Sonia Sotomayor's decision in Ricci "is far outside the mainstream of American thought." However, four Supreme Court justices agreed with Sotomayor's court that -- in the words of Justice Ruth Bader Ginsburg's dissent -- "what this case does not present is race-based discrimination in violation of Title VII."

On the July 13 edition of Fox News' Special Report, Weekly Standard editor Stephen Hayes claimed that Judge Sonia Sotomayor's "decision on racial preferences in this Ricci case, involving the New Haven Fire Department, is far outside the mainstream of American thought." In the Ricci v. DeStefano case, the 2nd U.S. Circuit Court of Appeals determined, in a decision joined by Sotomayor, that the city of New Haven did not violate federal anti-discrimination law when it threw out the results of a fire department test because of racial disparities in the scores. The 2nd Circuit's decision was not outside the legal mainstream; four Supreme Court justices agreed with the 2nd Circuit that -- in the words of Justice Ruth Bader Ginsburg's dissent -- "what this case does not present is race-based discrimination in violation of Title VII." Justice David Souter -- whose seat Sotomayor would fill -- joined Ginsburg's dissent.

Indeed, on the July 13 broadcast of his radio show, Fox News senior judicial analyst Andrew Napolitano stated that the decision in Ricci was a "close call" and that "the statute is an odd one and a difficult one to interpret, and she was reversed by a 5-to-4 vote. She could have easily been upheld by a 5-to-4 vote." He also stated that "there's no evidence" Sotomayor would "put her thumb on the scale of justice to favor some litigant whose cause she agreed with," adding, "Her opinions from the bench are well within the mainstream of American legal thinking."

From the July 13 broadcast of Fox News Radio's Brian & The Judge:

CALLER 1: If you're going to confirm a judge, the judge must explain the constitutionality. She must -- she or he must --

NAPOLITANO: But wouldn't you expect -- you and I have never met, but we've spoken to each other hundreds of times. You know that I am a fairly rational human being, but I'm also the subject of the things that made me. I mean, I was raised in a blue collar environment. I was fortunate enough to go to Princeton.

I brought things in my brain, in my makeup, a Catholic upbringing to the bench that a person who had a different background wouldn't bring. So don't we expect people to bring to the bench their personhood -- that which has made them what they are?

CALLER 1: Yes, you do, but I'll go back to something that you probably remember. The Giants, back before the Super Bowl, lost a game because their opponents got five downs. Now, what Judge Sotomayor is saying, that because a team only gets two yards -- averages two yards per play, that they deserve five downs to put them on an equal basis.

NAPOLITANO: All right, you think she'd put her thumb on the scale of justice to favor some litigant whose cause she agreed with --

CALLER 1: Yes, I do.

NAPOLITANO: -- and you don't like that.

CALLER 1: I really believe she will.

NAPOLITANO: All right.

CALLER 1: It -- and again, when you're talking --

NAPOLITANO: There's no -- there's no evidence of that. Her opinions from the bench are well within the mainstream of American legal thinking. She's a liberal Democrat. I mean, the president gets to appoint whoever he wants.

CALLER 1: And I agree with that; elections have consequences.

[...]

CALLER 2: You know, you had a case where a Supreme Court judge was literally on vacation with a member of the case, yet -- and sided with them and they had no problem with that. In this case, I think you have Fox News deliberately distorting the issue of the Connecticut firefighters' case, referring to it as Sotomayor's ruling; they just kind of forget about the majority and the rest of the court ruling with her and the fact that the rest of the court refused to hear the case.

NAPOLITANO: I agree with you that it was a close call. I agree with you that the statute is an odd one and a difficult one to interpret, and she was reversed by a 5-to-4 vote. She could have easily been upheld by a 5-to-4 vote.

Look, the chief justice was reversed by his colleagues on a case he ruled on while a judge -- and he was already the chief justice when they reversed him. Matt, thanks very much for the call as usual.

From the July 13 broadcast of Fox News' Special Report with Bret Baier:

BRET BAIER (host): Steve, today, as we were listening to Republicans, you were -- you said that some of them were forward-leaning and that caught you a little bit by surprise.

However, was there some sense of being tentative to not go too far in the criticism for worry about a backlash?

HAYES: Yeah, I think there probably was. I mean, you heard several Republican senators invoke Miguel Estrada, which I think had -- accomplished two things. One, it allowed them to talk about somebody that the Democrats had shot down largely because of ideology -- or at least that's the Republican perception -- and two, it allowed them to bring up --

BAIER: He was a nominee for the Court of Appeals by George W. Bush.

HAYES: Right. And --

MARA LIASSON (Fox News political contributor and NPR national political correspondent): And it was filibustered.

HAYES: And it also allowed them to bring up a Hispanic, whom they had supported rather vigorously.

You know, I think she's -- you know, of course, she's likely to be confirmed. I think everybody acknowledges that. I think we are still likely to see Republicans draw out a few issues, in particular, one of them being racial preferences. The country is squarely opposed to racial preferences.

Her decision on racial preferences in this Ricci case, involving the New Haven Fire Department, is far outside the mainstream of American thought. It's far outside the mainstream of the thought of most Hispanics. It's far outside the mainstream thought of most Democrats granting preferences to groups based on race.

They're going to bring that up. I think they need to be careful and talk about it in a smart way, but I think they're going to bring it up, and they should. They should be aggressive about it.

The other thing that jumped out at me today, listening to Republican senators, was I think five of them brought up this idea, this discussion that she's had about paying attention to -- or in some cases even operating in deference to -- international and foreign law.

I think this is likely to be something that we're going to hear much, much more about from Republicans to try to draw out some answers of exactly what she meant at one point in something she said in April; she said, you know, this -- we will lose our influence in the world if we don't pay more attention to international law.

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