Wednesday, November 05, 2003

Discrimination as to Judicial Nominees

Jane Galt has gotten some heat for her recent post asking whether Democrats are guilty of racial discrimination in their rejection of Miguel Estrada and Janice Rogers Brown as nominees to the D.C. Circuit. In particular, she asked, "Is this the kind of discrimination they've outlawed for private companies?"

Several critics have pointed out that Senate Democrats have approved the nominations of several other individuals who are racial minorities. The implication is that this refutes any suggestion of discrimination on the part of Senate Democrats. (Critics who made this point include Ted Barlow, Dwight Meredith, and Nathan Newman.)

But if we are talking about the requirements of federal anti-discrimination law, the critics' point would be valid only if Estrada were raising either a "disparate impact" claim or a so-called "pattern or practice" claim. In some cases, the plaintiff attempts to prove a "pattern or practice" of discrimination by showing that the employer systematically hires fewer people of one race. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). And in others, the plaintiff attempts to prove that a purportedly neutral employment requirement (e.g., requiring a high school degree) creates a disparate impact on a certain race. See, e.g., Griggs v. Duke Power Co., 401 US 424 (1971). In either type of case, the employer might respond with statistics showing that minorities are faring well.

But disparate impact and "pattern or practice" claims aren't the only types of discrimination claims. Any individual who thinks that he or she was treated differently on account of race can sue for that individual instance of discrimination. And in such lawsuits, the employer cannot get the case dismissed simply by pointing to other racial minorities who haven't been mistreated. See, e.g., Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("The district court found that HCCAA did not "discriminate generally on the basis of sex" because nearly half of its supervisors were women, women were on its Board of Directors, and one of the vacant Field Representatives positions had been held by a woman. Though these statistics may be some evidence of absence of discrimination, especially in a disparate impact case, they do not constitute an adequate basis for a finding of non-discrimination in a disparate treatment case involving a particular instance of failure to promote.").

And that's as it should be. There is no rule that an employer is innocent of racial discrimination unless it fired or refused to hire every single racial minority in sight. It's enough to show that discrimination was involved in the plaintiff's individual case. Otherwise, there would be no remedy in situations where the employer discriminated against one or a few individuals but not against everyone.

* * *

Let's take a closer look at what federal law actually says, and whether Estrada might have a discrimination case (that is, if Title VII applied to judicial nominations).

The most important Supreme Court case governing employment discrimination cases under Title VII is McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It's a four-part test:
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
McDonnell Douglas, 411 U.S. at 802.

Miguel Estrada could easily satisfy this test. First, he belongs to a racial minority. No question about that. Second, he applied and was eminently qualified for the position of judge on the D.C. Circuit. There is no serious question about Estrada's qualifications. Third, despite his outstanding qualifications, he was rejected. Fourth, the position remained open.

Estrada's case would also be vastly strengthened by the fact that the Senate (including Senate Democrats) overwhelmingly approved the nomination of John Roberts to the D.C. Circuit. Roberts' qualifications are strikingly similar to Estrada's -- a degree from Harvard Law School, a Supreme Court clerkship, a period of time at the Solicitor General's office, and extensive experience in private practice as a Supreme Court practitioner. This sort of evidence is used all the time in employment discrimination cases. If a black person wasn't hired but a white person with identical qualifications was hired, the case for discrimination is that much stronger.

Thus, Estrada could handily make out a prima facie case of employment discrimination.

* * *

But that's not the end of the matter. After a plaintiff demonstrates a prima facie case, the employer has the opportunity "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. If there was such a legitimate reason, then the plaintiff loses. But if the employer's reason is shown to be a "pretext," McDonnell-Douglas, 411 U.S. at 804, then the court may find that discrimination has occurred.

So what are the "legitimate" and "non-discriminatory reasons" offered by the Senate Democrats? The reason most often put forward by Democrats was that Estrada failed to turn over confidential memoes that he wrote when he worked for the Solicitor General's office under the Clinton administration. (See Pat Leahy's press releases from March 18 and May 5, Kennedy's floor statement from March 4, and Daschle's press release of February 5.) But Democrats did not demand the identical memoes that John Roberts wrote when he worked for the Solicitor General's office. So that reason appears to be utterly pretextual.

Another reason offered by some Democrats was that Estrada was opposed by various Hispanic groups. For example, this September 16 press release from Leahy mentioned that the Puerto Rican Legal Defense and Education Fund opposed Estrada because "he has not had a demonstrated interest in or any involvement with the organized Hispanic community or Hispanic activities of any kind." Needless to say, if a nominee is going to be blocked because he has not demonstrated enough interest in "Hispanic activities," it becomes more difficult to claim that ethnic considerations had nothing to do with the opposition. And no analogous ethnic demands were made regarding John Roberts.

Another reason offered by some Democrats was that Estrada wasn't forthcoming enough in answering questions from Senators during his confirmation hearing. (This claim was made by Leahy in his press releases on February 22, March 6, and September 15; by Kennedy in his floor statement from March 4, and by Daschle in his press releases of February 5 and May 13.) Estrada's answers to certain questions were somewhat evasive, but on the other hand, Estrada offered to answer more questions from Senators, and few Democratic Senators took him up on the offer. Given their refusal to ask further questions, their claim that he wasn't forthcoming enough seems to be pretextual.

One final reason was that Estrada didn't have the relevant legal experience. In a press release on February 5, Leahy said:
Given the importance of the D.C. Circuit and the effect of their decisions on the rights of all Americans, we must take special care in evaluating nominees to this court. It is noteworthy that it does not appear that Mr. Estrada has had any experience as a practicing attorney since 1989 handling cases within the special jurisdiction of the D.C. Circuit, such as cases involving the National Labor Relations Board, the Occupational Safety and Health Administration, the Federal Communications Commission, the Americans with Disability Act, the Federal Energy Regulatory Commission, the Federal Election Commission, the Endangered Species Act, the Environmental Protection Agency (such as the following environmental statutes: the Resource Conservation and Recovery Act, 42 U.S.C. § 6976; Superfund, 42 U.S.C. § 9613; the Clean Water Act, 42 U.S.C. § 300j; and Clean Air Act, 42 U.S.C. § 7607) or the cases involving alien terrorists or challenges to the 1996 amendments to the Immigration and Nationality Act.

The bulk of Mr. Estrada’s experience, including his Supreme Court arguments, involves criminal appeals, but criminal appeals constitute only about 5 percent of the work of the D.C. Circuit. Similarly, Mr. Estrada’s experience in banking and HMO law also constitute a statistically insignificant percent of the work of this court. While it is true that not everyone appointed to this circuit has prior judicial experience, others have had more legal experience or legal writings than Mr. Estrada has had.
As far as I can tell, no one ever inquired (at least not on the record) into John Roberts' experience with cases involving FERC, the FCC, RCRA, CWA, or any of the other statutes or agencies listed by Leahy. Thus, whether or not this reason is pretextual, it is another example of behavior that would be prima facie evidence of discrimination in a lawsuit over private employment.

So, Estrada would probably be able to demonstrate that the Democrats' proferred reasons were either pretextual or else were examples of discriminatory treatment, particularly given that the same reasons could have been (but weren't) used to block John Roberts.

And at that point, Estrada might be able to win an employment discrimination suit, just based on the above facts alone. It wouldn't be a definite win, but current federal law does allow a verdict for the plaintiff where the employer's "legitimate" reasons are shown to be pretextual. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").

* * *

Thus we come to what everyone knows is the real reason that the Democrats blocked Miguel Estrada: Because they were afraid that he might be nominated to the Supreme Court. As Ted Kennedy said to his fellow Democrats, "The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with [Supreme Court Justice] Clarence Thomas."

Now think about that for a minute. What "mistake" was that? The only thing Kennedy could have meant was the "mistake" of letting Thomas become a D.C. Circuit judge in the first place. With Thomas in that position, Bush I was able to nominate Thomas to the Supreme Court. And despite the best efforts of Anita Hill and every Democratic special interest group under the sun, several Democratic Senators found it impossible to avoid voting for Thomas simply because they didn't want to be seen voting against an African-American nominee to the Court. Their "mistake," in other words, was letting a conservative racial minority ever get to the point where he could be plausibly nominated to the Supreme Court.

The objection will be raised: Kennedy merely meant that the mistake was in letting any conservative get to the D.C. Circuit. But note that he didn't refer to the "mistake we made with Antonin Scalia," even though Scalia is equally conservative and was successfully nominated to the Supreme Court after serving on the D.C. Circuit. The fact that Kennedy referred only to Thomas, and not Scalia, is evidence that he was (even if subconsciously) referring to what he views as a bad experience with a conservative minority.

Another objection will be raised: How can anyone seriously suggest that Democrats are guilty of discriminating against minorities? Well, this is a valid objection only if "discrimination" under federal law required some showing of personal animosity. But there is no such requirement.1 In order to win an employment discrimination case, you don't have to show that the employer was personally full of hatred, bigotry, meanness, spite, or any other feeling of ill-will towards minorities (although such a showing usually helps!). All you have to show is that race or ethnicity was a "motivating factor" in the hiring or firing decision. So if an employer said, "I love black people with all my heart, but unfortunately my customers might not want another black employee here," the employer can be held guilty of racial discrimination.

More to the point, imagine a CEO who said: "I hate the idea of modernized widget production, and I don't want senior management who believe in it. I had a bad experience the last time I hired a black person who believes in modernizing widgets -- our company's HR people were so gung-ho about the diversity he brought to the company that I couldn't get away with opposing his further promotion to senior vice-president. So, I've learned my lesson. Out of two candidates for several openings at the vice-president level, both of whom believe in modernized widget production, I'll hire the white candidate but not the black one. I'll be able to block the white person's promotion, and the black guy will never even get the chance to be promoted to senior vice-president."

Clearly, there are several motives going on here. The CEO doesn't like modernized widget production, and that's the primary reason for his concerns. But there is also no question that he treated the black person differently from the white person, because of his fear that he wouldn't be able to prevent the black person from being promoted. Given the current state of federal law, I am fairly certain that the black person here would have a good claim as to employment discrimination.

You see, race/ethnicity does not have to be the sole reason for the adverse action. All the plaintiff has to show is that race or ethnicity was one motivating factor, even if the employer had many other reasons for failing to hire the plaintiff. See 42 U.S.C. 2000e-2(m): "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." The employer can escape liability for damages only by showing that there is no way it would have hired the plaintiff no matter what the plaintiff's race -- but even then, the employer can be subject to declaratory relief, injunctive relief, and an award of attorneys' fees under 42 U.S.C. 2000e-5(g)(2)(B).

So if the employer takes race into account at all, even with no feelings of ill-will towards the racial minority, he can be held guilty of employment discrimination. Likewise, if the Democrats took Estrada's race into account in deciding that they should oppose him and not Roberts, then they are guilty of the sort of conduct that might be held to violate Title VII, even if their main motive was to take preemptive action against conservative potential nominees to the Supreme Court.

1As the 11th Circuit recently said, "ill will, enmity, or hostility are not prerequisites of intentional discrimination." Ferrill v. Parker Group, Inc., 168 F.3d 468, 473 n. 7 (11th Cir.1999). The Supreme Court reached a similar conclusion in Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), holding that there could be liability for discrimination even though "there was no suggestion [ ] that the [defendant] held any racial animus against or denigrated blacks generally," id. at 668.


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