Firefighter Decision No Surprise so Calm Down

Before any of my conservative friends pop their favorite champagne and celebrate the defeat of notorious reverse racist Sonia Sotomayor at the hands of the Supreme Court, let’s put the Ricci v DeStefano case into perspective. From the time of her nomination, bloggers, media moguls and friends of mine that live in foreign countries have been outraged that the president used “emotion and empathy” as choice criteria and not judicial temperament (cough!). For Republican pundits, rejecting discrimination claims by a margin of 8 to 1 just isn’t impartial enough (choke!). Her nomination is nothing more than identity politics at best , otherwise outright racism (here it comes...). Her name is just... just... UNNATURAL to the English language (bleeeeaaarrrrcch!)! The Ricci case may appear to add credence to the line that Sotomayor is inexperienced or out of touch, but take a closer look and you will see both her experience and her judicial restraint clearly.

First the facts of the case:

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions (IOS), Inc. to develop exams given to qualifying applicants. The results of these exams would not have allowed for the promotion of any black firefighters due to their low scores. Further, black applicants’ pass rate on the lieutenant exam was half of the rate for white applicants. The city’s exam review board could not decide whether the tests were racially biased based on a representative of an IOS competitor's testimony that the results showed “adverse impact.” Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past. Officials were concerned that if the test results were certified, then the city could be subject to a disparate treatment suit from minority applicants who did not qualify for promotions. The results were not certified. A group of white firefighters, including one Hispanic, who scored some of the highest results on the exams, filed a Title VII suit against the city and its officials. The district court ruled that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII’s disparate treatment prohibition. On appeal, the Second Circuit, showing judicial restraint, affirmed the district court’s opinion. The unanimous panel, which included Judge Sotomayor, concluded that the city could not be held liable for its failure to certify because it tried to fulfill its obligations under Title VII.

That attempt invited a suit over the selfsame law. New Haven was damned either way. Rather than go into the particulars of the case one by one, and they are complex, let’s look at the judicial history of this case as it relates to Judge Sotomayor. Sotomayor affirmed the decision of the federal district court judge. Her decision was part of a unanimous panel of three judges from the Second Circuit Court of Appeals. By a 7-6 majority, the Second Circuit refused to reverse that panel's ruling. Finally, four out of the nine Supreme Court Justices, including the guy she is to replace, agreed with her.

The Supreme Court’s decision is far from surprising. Kennedy, Roberts, Scalia, Thomas, and Alito issued the majority opinion in favor of the petitioners; thus, overruling the lower courts’ decision. Ginsburg, Stevens, Souter, and Breyer sided with the lower courts. We can put questions about her experience and her judicial temperament to rest. The only reason the right has celebrate Ricci, is that of the minority of federal judges to rule in the petitioners’ favor, five of them had the final say. The right has to be careful celebrating this decision. Do so too loudly and it sounds as if they are celebrating the government favoring a white man’s right not to be discriminated against over a black man’s right not to be discriminated against.

Of her alleged racism, I have already written. Here are, however, some quotes that might lend credibility to those charges of racism:

when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position…

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Whoops! Wait... that was Samuel Alito three years ago.



Alito then, like Sotomayor in her 2001 speech, was alluding to the human condition of having experience factor into decision-making. He got a pass and no one challenged him for using his “emotions” or being too empathetic. In her speech, Sotomayor pointed out that while her experiences shape who she is, she has to rise above them and consider how her decisions (as the person so shaped) will affect everyday Americans in their everyday lives. This isn’t racism of any kind. It’s the human condition.

The bigger surprise in the Ricci case would have been if Kennedy had upheld the lower courts' decision instead of disregard it. Predictably, that did not happen. The Supreme Court reversing her, and her colleagues', decision has no bearing on her fit on that bench. At a 60% reversal rate, Sotomayor is the Ted Williams of appeals judges. The Supreme Court reverses about 75% of cases it hears and Alito had a reversal rate of 100%. She has the experience and the judicial temperament. Personal attacks on her intellect (second in her class at Princeton) and ethnic identity are base as well as wrong. Her empathy, like that of Sam Alito's, should be seen as an asset, not a detriment. In short, get ready America... you will have a "Hispanic chick-lady" as your next Supreme Court Justice.