Judge Sotomayor And The Firefighters,Editorial Board

As Monday's Supreme Court decision in the New Haven firefighters' reverse discrimination case sinks in, the terms of the debate over President Obama's nomination of federal appeals judge Sonia Sotomayor for a seat on that court is likely to take a sharp turn.

We had not been looking forward to the inevitable and mindless partisan bickering over the nomination that was sure to heat up once Judge Sotomayor's confirmation hearings got underway. But Monday's decision will make people think in real terms about Judge Sotomayor's position on employment quotas.

Although the decision she had joined in as an appeals court judge did not go into any detail, the Supreme Court's reversal of that decision was quite detailed and revealing. In fact, the case at issue was stunning in its import.

In sum, the Supreme Court ruled that white firefighters in New Haven were discriminated against when the city refused to accept the results of a previously certified promotion test because while they did well on the exam, black firefighters did poorly.

Federal law has long prohibited not only intentional discrimination defined as "disparate treatment" but also seemingly neutral practices that have a "disparate impact" on members of minority groups. Over the years, tests found to be culturally biased were disallowed as being fundamentally unfair and therefore discriminatory and the results dismissed.

In the New Haven firefighter case, however, there was no evidence that the test was slanted. But when the results came in and it appeared only one black would qualify for a promotion, New Haven officials said this was a result they could not live with. Thus, the case represented a quantum extension of the disparate impact principle: a move away from the notion of promoting equal opportunity toward one of numerical results or quotas.

The white firefighters sued in federal district court, where the case was promptly dismissed, the presiding judge accepting New Haven's argument that it feared it would lose a disparate impact lawsuit brought by black firefighters, even though there had been no finding that anything was wrong with the test.

The white firefighters appealed, and Judge Sotomayor was part of the three-judge panel that heard the appeal. In a controversial decision, the court issued a one-line affirmation of the district court's dismissal without offering any rationale or reasoning.

The Supreme Court reversed that decision. Justice Anthony Kennedy's opinion for the court's 5-4 majority stated that allowing "employers to discard the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination would amount to a de facto quota system."

So Judge Sotomayor's role in the now reversed decision to uphold the extension of the disparate impact concept could prove problematic as her nomination comes under Senate scrutiny. The substance of the issue could prove a lightning rod, but the short shrift one-dimensional treatment of the case by the appeals court could add to her difficulty. It was almost as if she did not think there were two sides to the issue.

To be sure, four current members of the court agreed with her, including Justice David Souter, whom she is slated to replace. But the Senate confirmation process is likely to morph into a debate over the Obama administration's views on quotas versus merit and the kind of court President Obama wants to build overall.

Read Comments (2)

Judge Sotomayor And The Firefighters , Editorial Board

Down With Radical Egalitarianism!
Date 03:07, 07-1, 09

W., 07/01/09

As George Orwell wrote, "Some creatures are more equal than others." The 5-to-4 decision. American Jews have unwisely "affirmative action" over the years. Maybe those Jews will finally get wise.

I've read that Judge Sotomayor's undergraduate and law school test scores were lower than some White applicants but that she was granted admissions preference solely on her ethnicity.

I put myself through 4 years of night law school by working at various day jobs. I have never expected a medal for those efforts because the U.S.A. is one of the few nations on earth where colorblind laws are the standard for getting ahead.

"Sotomayor was wrong:" Supreme Court ruled 9-0
Date 12:07, 07-3, 09

This editorial made the common mistake of saying that 4 of the Supreme Court justices agreed with Judge Sotomayor. A footnote in Justice Ginsburg's dissent makes it clear that the 4 dissenters thought that the District Court Judge and the Appeals Court panel decision was wrong. They would have remanded the case for further proceedings as they did not agree that summary judgment for the city was correct. In view of the majority's outright reversal, the 4 "liberal" justices dissented and would have affirmed.

All 9 U.S. Supreme Court justices thought Sotomayor was wrong!