- The Washington Times
Monday, June 29, 2009

The Supreme Court on Monday ruled that white New Haven, Conn. firefighters were discriminated against when the city threw out a promotion test because not enough minorities did well on it, explicitly rejecting an argument endorsed by Judge Sonia Sotomayor, President Obama’s pick to join the high court.

In a 5-4 decision, the court ruled that New Haven violated both the Constitution and the Civil Rights Act in tossing the test results.

Judge Sotomayor, President Obama’s nominee to fill the seat of retiring Justice David Souter, was one of three judges who ruled in favor of New Haven and part of the majority that rejected a full hearing before the 2nd U.S. Circuit Court of Appeals.

The ruling is already being seen as a hurdle Judge Sotomayor will have to overcome next month when she goes before the Senate Judiciary Committee.

Sotomayor opponents, backers parse court ruling

Rep. Tom Price, Georgia Republican and chairman of the conservative Republican Study Committee, said the ruling is a reason to slow down her confirmation process and study her record.

A Supreme Court justice must be objective above all else. Americans should be concerned that a nominee to our highest court has a record of being blinded by empathy for one group while endorsing discrimination against others,” he said.

In two places in her dissent, even Justice Ruth Bader Ginsburg appeared to question how Judge Sotomayor’s court handled the case from a procedural standpoint.

Justice Ginsburg said the district court short-circuited the firefighters’ chance to make their case, said the appeals court should have sent the case back to the trial court for a fresh hearing, and said the Supreme Court should have done the same thing in this case.

“This really is a unanimous opinion that the courts below were in error. They just disagreed on what that error was,” said Gail Heriot, a law professor at University of San Diego School of Law.

But Judge Sotomayor’s backers the case does not reflect on her jurisprudence because she was following precedent.

“Sotomayor and herpanel colleagues were bound by longstanding precedent and federal law,” said Marge Baker, executive vice president for People For the American Way, a liberal legal group. “They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.”

Justice Kennedy, writing for the majority, said New Haven could not show a convincing reason why the test should be thrown out, and said the threat of lawsuits from minority candidates wasn’t justification.

“Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the citys reliance on raw racial statistics at the end of the process was all the more severe,” Justice Kennedy wrote in an opinion joined by Chief Justice John G. Roberts Jr., Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel A. Alito.

Writing in dissent, Justice Ginsburg said the court’s decision Monday ignores New Haven’s valid interest in having diverse leadership in their fire department.

“By order of this court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served — as it was in the days of undisguised discrimination — by a fire department in which members of racial and ethnic minorities are rarely seen in command positions,” she wrote.

She predicted the court’s opinion “will not have staying power.”

Writing a concurring opinion with the majority, Justice Scalia said the court has still put off an eventual reckoning over discrimination law. He said Title VII of the Civil Rights Act, which allows for disparate treatment if it serves to remedy discrimination, will eventually have to be squared “with the Constitution’s guarantee of equal protection.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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