The following editorial was published in the Wall Street Journal today, June 30, 2009. For those who would defend Judge Sotomayor's mishandling of the case brought by the New Haven firefighters by reminding us that she was only one of three judges on the Second Circuit Court of Appeals involved in the mishandling, it should be pointed out that she is the only one of the three who has been nominated to serve on the Supreme Court.
Here's the editorial:
Firefighter Justice
The Supremes, Sotomayor, and racial jurisprudence.
The Supreme Court closed an otherwise unremarkable term on a high note yesterday, rejecting the notion that one kind of racial bias can be remedied by another. On the last day of opinions before the Court is potentially joined by Judge Sonia Sotomayor, the Justices overturned one of her most closely scrutinized cases on workplace discrimination. The effect was to take an important step away from the practice of divvying up jobs by race.
Writing for a 5-4 majority in Ricci v. deStefano, Justice Anthony Kennedy said that the city of New Haven violated civil-rights law when it threw out firefighter promotional exams because more whites than blacks or Hispanics had passed the tests. New Haven claimed it had to junk the tests because certifying the results would lead to an avalanche of lawsuits by black candidates who hadn't passed. In other words, the city claimed it had to intentionally discriminate against white candidates out of fear that the tests unintentionally had a "disparate impact" against minorities.
But the Court found no evidence that the tests were flawed or that better alternatives for promotion existed. On the contrary, employment tests are an important tool against the very kind of racial discrimination that civil-rights laws were designed to prevent. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Kennedy wrote. The Supremes created this "disparate impact" reverse discrimination incentive with its 1971 Griggs decision, since codified into law, but at least five Justices are still able to object to this kind of blatant racial injustice.
In the opening of her dissent, Justice Ruth Bader Ginsburg writes that "the white firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy." To which Justice Samuel Alito replied in a majority concurring opinion that "'Sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law -- of Title VII's [of the 1964 Civil Rights Act] prohibition against discrimination based on race. And that is what, until today's decision, has been denied them."
Justice Alito underscores how little attention the firefighters' claim was given by lower courts. In 2006 a federal district court dismissed the case before it went to trial. A three judge panel of the Second Circuit Court of Appeals that included Judge Sotomayor then upheld the lower court's judgment in a one-paragraph statement, and later a terse opinion parroting the district court.
The dismissive treatment of the firefighters' claim drew the censure of fellow Second Circuit Judge Jose Cabranes. A former mentor of Ms. Sotomayor, Mr. Cabranes said the court had "failed to grapple with issues of exceptional importance."
On this question of the Second Circuit's mishandling, the Justices agreed unanimously yesterday. In footnote 10 of her dissent, Justice Ginsburg wrote that while she disagreed with the decision to reverse the lower court ruling, there were questions about how it was decided. Based on the lower court's mistaken focus on intent, she wrote, "ordinarily a remand for fresh consideration would be in order."
Judge Sotomayor's handling of the case deserves to be thoroughly aired during her confirmation hearings, insofar as it reinforces concerns that she is prone to race-conscious jurisprudence. The issue originally came to the fore over the judge's remarks that a "wise Latina" would come to a better conclusion than a white male judge who would lack the proper empathy for certain kinds of defendants.
Ms. Sotomayor's supporters have been at pains to argue that she has ended up on both sides of racial discrimination complaints while on the Second Circuit. But those examining her record can reasonably ask if the disregard she exhibited for a Title VII claim by white firefighters falls into the category of neutrality or its own kind of bias.
Because the Court's ruling was narrowly made on statutory grounds, it dodged the larger claim brought by the firefighters that New Haven violated their constitutional right to equal protection. Yet as Justice Antonin Scalia notes in his concurrence, the disparate impact standards "place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes." Someone should ask Judge Sotomayor if that's her idea of equal protection under the law.
