A case Sotomayor is unlikely to explain

Washington Post:

It is the 134-word summary order in Ricci v. DeStefano, which upheld the decision of New Haven, Conn., to throw out the promotion test it had given city firefighters when no African Americans and two Hispanics qualified for advancement.

The case is under review by the Supreme Court that Sotomayor would join. If the decision is reversed -- which, from the tone of oral arguments in April, seems a distinct possibility -- the high court's ruling will probably come at the end of June, just as the Senate and the nation begin to consider Sotomayor's qualifications.

The White House, concerned that a reversal would be seen as an embarrassment for its nomination, is rolling out a multi-pronged strategy to explain the case and Sotomayor's role in it. The first step was to offer a collection of legal experts who say the ruling marks Sotomayor not as a judicial activist, or even a supporter of minority rights, but as a conservative jurist whose actions show how closely she hews to court precedent.

But White House strategists face a tough challenge in the sound-bite war. The New Haven case raises complex issues about workplace bias and how far governments may go to ensure they are not discriminating against minorities before they intrude upon the rights of those in the majority.

The white firefighters who brought the suit say it can be reduced to this: They were denied the promotions they earned because of the color of their skin.

Moreover, the scant order by a unanimous three-judge panel that included Sotomayor was devoid of legal reasoning for affirming the decision of a lower district judge, a curious dismissal for a case that represents significant questions of law and the Constitution.

Although most of Sotomayor's colleagues on the full U.S. Court of Appeals for the 2nd Circuit agreed with the approach, it was roundly criticized by her mentor, Judge José A. Cabranes, who was also appointed to the circuit by President Bill Clinton. Cabranes wrote on behalf of the Republican-appointed judges in denouncing the cursory nature of the review and in urging the Supreme Court to review the case.

"The opinion contains no reference whatsoever to the constitutional claims at the core of this case," Cabranes wrote. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

In New Haven, tensions between white and minority firefighters are the real-life consequences of the suit, and Sotomayor's nomination has ratcheted up the attention.

Gary Tinney, president of the local chapter of the International Association of Black Professional Fire Fighters, said relations are not good in the department, where no one of any race has been promoted since the test was given in 2003.


It was a bad decision and has obviously had a negative effect on the morale of all the fire fighters. It is what happens when objective standards are set aside in favor of criteria that is based on ethnicity. I think she will refuse to comment on the case during the confirmation process, whether it is still pending or not.


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