It is not yet clear whether Senate Republicans will seriously challenge President Obama’s nomination of Court of Appeals Judge Sonia Sotomayor to replace David Souter on the Supreme Court. Nonetheless, it is clear that conservative pundits and grassroots activist groups will publicly oppose the nomination regardless of whether Senate Republicans pick up the fight. This article is the first in a series that will examine arguments against the nomination that are likely to be taken from Sotomayor’s previous speeches and decisions as a Judge. By doing so the article hopes to highlight the emerging issues and to clarify them before they become a major focus of public debate. The issue to be examined in this article is the decision by Judge Sotomayor to join the majority opinion in Ricci v. Destefano: a decision for which she has already been criticized by Conservatives.
Conservatives have used the decision in Ricci as evidence that Judge Sotomayor will “discriminate from the bench” (apparently against white males). The ruling has been used by pundits like Rush Limbaugh and Sean Hannity in an attempt to paint Sotomayor as a “reverse racist”. To understand whether the decision supports these criticisms, it is necessary to understand the facts of the case, the law at issue and what the decision in Ricci does and does not hold.
Facts of the Ricci Case
The City of New Haven Connecticut administered an employment test for promotion for its fire department. After the test was given and scored, it was found that minority firefighters performed disproportionately poorly on the exam when compared to white firefighters. The City of New Haven declined to certify the results of the test and a group of white firefighters sued, claiming the failure to certify the results, thereby denying them promotions constituted discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the United States Constitution.
The New Haven Decision not to Certify and the Laws at Issue
Both the Equal Protection Clause and Title VII prohibit discrimination on the basis of race. Had the City of New Haven simply failed to certify the test because it did not like the fact that whites would be disproportionately promoted, this would constitute a clear violation of the Equal Protection Clause and Title VII. But Title VII also includes a “disparate impact theory”, adopted in Griggs v. Duke Power, holds that a selection device (like a test for promotion) might violate Title VII if the device tends to select members of one race over members of another race and is not an appropriate test to use to select the better candidate for a job. The burden is on the employer to demonstrate that the test is appropriate, and that there are no other equally appropriate tests that do not have a disparate racial impact. The City claimed that its decision not to certify the results was made to avoid potential disparate impact liability. The firefighters argued that the decision was a conscious decision to deny promotion on the basis of race.
The District Court Opinion
The District Court granted summary judgment in favor of the City, holding that it did not intentionally discriminate on the basis of race, but was rather acting to avoid disparate impact liability. It held that any facially valid efforts by a city to reduce or eliminate the disparate impact of a test are valid unless the decision is actually motivated by intentional discrimination. The District Court held that there was insufficient evidence of an intentionally discriminatory motive on the part of the City for the firefighters to survive a motion for summary judgment.
The Second Circuit Decision
A panel of the Second Circuit Court of Appeals, including Judge Sotomayor accepted the reasoning in full of the District Court and affirmed the decision to grant summary judgment. The Court concluded that the City had no good option: it could certify the exam and face a suit for disparate impact liability under Title VII, or it could refuse to certify and face a suit for discrimination by the non-promoted firefighters. The firefighters petitioned for a rehearing en banc (by the full Second Circuit Court) which was denied 7-6, over a stinging dissent by another Democrat appointed Judge who alleged that the panel decision ignored the critical issues in the case. The firefighters petitioned for hearing in the Supreme Court and the petition was granted. The Supreme Court has heard arguments in the case and but has yet to render a decision.
What the Ricci decision does not tell us about Judge Sotomayor
It is not clear that very much can be determined about Judge Sotomayor from this decision alone, and it certainly cannot be read in a way that justify claims of “reverse racism”. First, it should be noted that Sotomayor did not draft an opinion in the case, so her precise reasoning cannot be determined. Basically, by joining the majority of her panel on the Second Circuit, she upheld the factual findings of the District Court, but joining opinion does not necessarily mean she agrees with the entire opinion that she joined. She could have agreed with all of it, part of it or just the result. Because she joined the majority in both the panel decision and the decision not to rehear the case en banc, it cannot be argued that she is outside the “judicial mainstream” since the majority of her colleagues shared her conclusions, if not her reasoning.
To the extent that any decision in this case can be characterized as “racist” it would be the decision made by New Haven not to promote firefighters, although even their decision can arguably justified in terms of attempting to prevent discrimination rather than promoting it. The Second Circuit decision can only be criticized to the extent that it is found to defer too much to the City and to the conclusions of the District Court, but cannot be reasonably called “racist”. Nothing about joining the decision means that Sotomayor or any other judge personally likes the decision New Haven made. It just means that the judges did not believe the decision violated Federal law or the Constitution. While this conclusion is debatable, disagreements over what the law protects does not mean that a judge personally likes the results of everything they believe is allowed by law.
Griggs v. Duke Power, 401 U.S. 424 (1971)
MediaMatters, “Race to the Bottom: Conservative Media Attack Judge Sotomayor, Youtube. May 31, 2009.
Ricci v. Destefano, 2nd Circuit Court of Appeals.
Ricci v. Destafano, denial of Rehearing En Banc.
“Sotomayor will Discriminate from the Bench”, RedState, May 27, 2009.
Title VII, Civil Rights Act of 1964.
United States Constitution, 14th Amendment