It’s the middle of the political season. And you know what that means, a request to vote.

No, not for the Presidential election (though I’ll have more on that next month).

But for the ABA Journal’s Blawg 100 nominations which end on September 7th.

For three years running, this blog has been named to the list, which recognizes some of the best legal blogs in the country.  Can we make it four?

In order to make that happen, the ABA Journal is soliciting nominations.  If you enjoy reading this blog, take a minute to fill out the online form here.  It shouldn’t take more than a minute or two.

I’d also like to thank those that have added me to various other lists over the last month, including the Fastcase 50, Best Lawyers, and HR Examiner’s Top 25 List of Influencers in Employment Law. 

Nearly five years after starting this blog, it’s great to see that so many still get so much out of it. Again, many thanks for your continued reading and support.

Popularity contests have never been my thing.  And asking for votes is even less my thing too.

But as I recently noted, the popular Sad City Hartford blog has nominated me for the “Hot in Hartford” 2012 contest.  It is a silly contest, as the blog authors readily concede, but a contest nonetheless. 

And for the next 24 hours, I’m up against popular WNPR radio host John Dankosky, in a one-on-one poll. 

As of this afternoon, just FIVE votes separated us.  Since I know that there are several hundred of you that visit this blog every day, if you took 30 seconds to vote, we could easily send a message that the law is greater than a talk show even if just a fraction of you voted.

(Put aside, for the moment, that I have great respect for John Dankosky and, having met him in person, he’s the real deal.  But all’s fair in battle.)

So, please click here and vote for the me and the blog.  (No registration required.)  And show that a lawyer can win a popularity contest after all.   


Over the last 24 hours, much virtual ink has been spilled on a case pending before the U.S. Supreme Court, Ricci v. DeStefano, because Judge Sonia Sotomayor — one of the judges handling the case at the Court of Appeals — has been nominated to the Court. (I’ve covered the case in various posts here.)  From a Connecticut perspective, the Hartford Courant does its own recap here.

The question, frankly, is why such a fuss? 

Back in September 2006, U.S. District Court Judge Janet Arterton issued a lengthy opinion in which she dismissed the firefighters reverse discrimination claims and found for the city of New Haven.  Judge Arterton is no stranger to employment law cases, having represented mainly employees in private practice before getting appointed to the bench.  The decision is well worth the read.  Reasonable people can disagree with the outcome, but Judge Arterton’s decision hardly lacks logic or thorough reasoning. 

The firefighters appealed and the case went up to the Second Circuit.  Judge Sotomayor was one of three Second Circuit judges selected to serve on a panel to hear the case.  In the summer of 2008, she and two other judges decided to affirm the district court’s decision

The two other judges, Judges Pooler and Sack, and Judge Sotomayor all agreed that they did not have anything to add to Judge Arternon’s decision so they issued a "per curiam" opinion which, in essence, adopted the lower court’s reasoning.  (I should note that they original issued a summary order on the case, later turning it into a "per curiam" decision.  Summary orders are quite commonly used in the Second Circuit).  While not an everyday occurrence, it’s not uncommon for courts to use "per curiam" decisions either.  (Of course, perhaps the most famous "per curiam" decision was in Bush v. Gore, but that’s an argument for another day.)   

Here was the essence of the the Second Circuit’s decision:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

The firefighters appealed to the Second Circuit again, asking the entire court to hear the case en banc (meaning that all 13 judges would hear the case). That request was rejected by a 7-6 margin and featured a spirited dissent by Judge Cabranes

The case now is pending before the U.S. Supreme Court where another split decision is expected.

The attack on Judge Sotomayor from some on the Ricci case seems to focus on the fact that she and two other judges decided to dismiss the claim in a "per curiam" decision, rather than in a lengthy one. However, there are many reasons why a case might be decided in that fashion and to attribute and speculate as to the reasons it was used in the Ricci case seems to be reaching for an argument that might not otherwise exist.  And regardless, there were many other judges in the Second Circuit who did not believe the case warranted any further decision either as determined by the en banc vote.  Are all of them disqualifed from serving on the Second Circuit too?

Some critics have gone even further, claiming that her decision in the Ricci case showed that she "reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety." 

All of these critcisms of Judge Sotomayor seem to be a reach for an argument that doesn’t really seem to exist based on her handling of the Ricci case. And it certainly doesn’t suggest that she is unqualifed to serve on the U.S. Supreme Court. After all, if the Supreme Court rules in favor of the city, does that mean that the justices are also "reading racial preferences and quotas into the Constitution"? The answer is obvious: No.

So, what are we ultimately to make of the Ricci case? In my view, not much.  It is, quite simply, a difficult decision in which very bright people can disagree.  And judges don’t get to pick and choose the cases they are asked to judge. 

As the Workplace Prof succienctly said last month, "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

Although Connecticut’s own Rep. Rosa DeLauro was rumored to be on the short list for a Secretary of Labor post, reports Thursday evening suggest that Rep. Hilda Solis – a Democrat from California – has been tapped for that posDepartment of Labor - by Dan Schwartz - NOT public domainition.

So, what’s the immediate feedback from labor and business groups? Well, labor groups issued a press release praising the pick and business groups expressed concern. The New York Times sums it up here:

Ms. Solis has championed a bill, called the Employee Free Choice Act, that is the No. 1 priority of organized labor because it would make it far easier to unionize workers. The business community bitterly opposes the bill. She is the only member of Congress on the board of American Rights at Work, a pro-union group pushing for the bill.

“We’re thrilled at the prospect of having Representative Hilda Solis as our nation’s next labor secretary,” said John J. Sweeney, president of the A.F.L.-C.I.O. “We’re confident that she will return to the Labor Department one of its core missions: to defend workers’ basic rights in our nation’s workplaces. She’s proven to be a passionate leader and advocate for all working families.”

Labor leaders say they are very pleased that Ms. Solis joined them in opposing the Central American Free Trade Agreement as well as the pending trade agreement with Colombia.

By contrast, the reaction of business groups to the choice of Ms. Solis ranged from tactful displeasure to sharp dismay.

“We’re disappointed that she supports the Employee Free Choice Act,” said Randel K. Johnson, the vice president of labor policy at the United States Chamber of Commerce. “We expected Obama to pick someone supported by the A.F.L.-C.I.O. She’s not a pick whose philosophy we didn’t expect. We will disagree with her on some issues and work with her on some.”

The Washington Labor & Employment Wire has some more specifics on Rep. Solis’s positions, including her support for EFCA and "green collar" jobs. 

For employers in Connecticut, there’s likely to be a lot of hype about Rep. Solis’ positions supporting labor.  But before you leap, ask yourself this — can you name the current Secretary of Labor? Chances are, probably not. (It’s Elaine Chao.

Why? Because the President has dictated and will dictate what the agenda will be and what his priorities are going to be.  Given President-Elect Obama’s desire to seek consensus on a variety of issues, time will tell just what that agenda is going to look like.