Someone is gonna have some ’splanin to do.
Last month, the Supreme Court heard oral arguments in the case of Ricci v. Destefano, which centered on charges of reverse discrimination at the New Haven, Connecticut fire department. In 2003 the department administered a test to fill 15 captain and lieutenant vacancies, but when the results came in, no African Americans made the cut (14 whites and one Hispanic earned the top scores). In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work.
Ricci’s suit was initially thrown out at the district court level, prompting an appeal to the Second Circuit. At that point Sotomayor joined in an unsigned opinion embracing the district court’s analysis without offering any analysis of its own. This prompted fellow Second Circuit Judge Jose Cabranes—a liberal Democrat appointed by President Bill Clinton—to issue a stern rebuke. “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.”
It’s an important point. Ricci gets at the very heart of the debate over whether the Constitution should be interpreted as a colorblind document. As the liberal legal commenter Emily Bazelon noted at Slate, “If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes’ ire, and he hung a big red flag on the case, which the Supreme Court grabbed.” Given that the Court is likely to side with Ricci and his fellow plaintiffs, Sotomayor’s silent endorsement of New Haven’s reverse discrimination is certain to come back to haunt her during her confirmation hearings.
Two problems here; a) if the Supreme Court overturns the appellate court verdict either before or during Sotomayer’s confirmation hearing, how does that look and b) what does this decision say about Sotomayor’s priorities? A decision is expected from the SC before their session ends next month, so unless the Senate pushes through the speediest confirmation evah this is going to be a major sticking point.
Needless to say, this doesn’t look good on Obama’s end either. This plus her rather spotty reversal rate at the SC level in general lends to the argument that she was picked because of her gender and race as opposed to being specially qualified for the job. Sotomayor, barring any unforeseen catastrophes, is going to be confirmed so perhaps this opportunity would be best used to highlight Obama’s political pandering.
