On its own, the New Haven firefighters case would be a blockbuster. It raises the most difficult and divisive of constitutional and statutory issues: Whether a city can refuse to promote and throw out the results of a promotion exam simply because white and Hispanic firefighters scored higher than their black colleagues. Sotomayor’s Got Some ’Splainin’ To Do

For the past couple of weeks, the mainstream media and the political pundits have been relatively quiet concerning President Barack Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. But that near silence will most certainly end starting next week.

Judge Sotomayor’s confirmation hearings before the Senate Judiciary Committee won’t begin until mid July. However, next week marks the end of the Supreme Court’s current term and with it the justices’ decision in what has been left as the highest profile case yet to be decided -- Ricci v. DeStefano, No. 07-1428 (a.k.a. the New Haven firefighters case).

On its own, the New Haven firefighters case would be a blockbuster. It raises the most difficult and divisive of constitutional and statutory issues: Whether a city can refuse to promote and throw out the results of a promotion exam simply because white and Hispanic firefighters scored higher than their black colleagues.

But the Ricci case isn’t just the most significant case still pending on the High Court’s docket, it’s also a case that was decided by Judge Sotomayor in her current role as a judge on the U.S. Court of Appeals for the Second Circuit.

A year ago, along with two other federal appeals court judges, Judge Sotomayor upheld the district court’s ruling against the white and Hispanic firefighters who sued to force the City of New Haven to promote them based on their top-ranked scores in the promotions process. Even more significantly, Judge Sotomayor ruled against the firefighters’ discrimination claims in a decision that consists of essentially one paragraph. In other words, despite the importance and complexity of the case -- one that garnered the attention of the Supreme Court -- it appears that either Judge Sotomayor (and her two colleagues) thought almost nothing of the case and the issues it raised or tried to bury it.

Regardless, the Ricci case quickly got all of the attention it deserved. The Second Circuit narrowly voted not to rehear the case, which prompted Judge Sotomayor’s longtime mentor and current judicial colleague Judge Jose Cabranes to issue a stern rebuke in his dissent:

“The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals,” Judge Cabranes wrote. “The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled.”

Indeed, as the Supreme Court recognized in taking up the all but non-existent decision by Judge Sotomayor’s panel, the case raises the ever-present and still unclear question of just when the government may rely on race in making employment -- indeed, any -- decisions.

To further complicate matters, the New Haven firefighters case seems to pit two different provisions of Title VII of the Civil Rights Act of 1964 against each other.

Title VII’s primary theory of liability -- called “disparate treatment” -- prohibits employers from intentionally discriminating against employees (or potential employees) on the basis of their race, color, religion, sex or national origin. Such discrimination is easily understood and all but universally condemned.

At the same time, however, Title VII includes another theory of liability -- called “disparate impact” -- which, as National Journal legal affairs columnist Stuart Taylor wrote, imposes liability “[e]ven [on] employers who intend no discrimination,” but that use employment tests on which certain “ethnic groups … fare badly.” As Taylor went on to explain: “The surest way for employers to avoid such disparate-impact liability has been to discard the anti-[intentional] discrimination principle and allocate jobs and promotions in part on the basis of ethnicity.”

In other words, the Ricci case is about not only whether the government can legally and constitutionally rely on race in making decisions about employment, but also whether the government is required to consider race in making employment decisions -- at least with respect to the tests and processes that can be used to screen and rank candidates.

Seen in this light, it is simply unforgiveable that Judge Sotomayor believed she satisfied her judicial duty by simply affirming the decision by the district court in a nine-sentence decision that included essentially no legal or constitutional reasoning whatsoever.

That’s why, to borrow the words of television’s Ricky Ricardo, Judge Sotomayor has “got some ’splainin’ to do” when the Supreme Court decides the New Haven firefighters case next week. If she wants to be confirmed as one of the nine final arbiters of what the “supreme Law of the Land” means, why did Judge Sotomayor have nothing to say about such a fundamental and obvious question as whether the Fourteenth Amendment or Title VII means the government cannot rely on race in making employment decisions?

We thought the virtue of nominating federal appeals court judges for the highest court in the land was they prove themselves first with on-the-job training. But, at least in the Ricci case, Judge Sotomayor didn’t prove herself at all, except that she could sit behind the bench.

June 25, 2009
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