The Court Reverses Sotomayor

On June 29 the US Supreme Court ruled that the white firefighters in New Haven, CT, who qualified for promotions by taking an exam, were discriminated against when the City discarded the test results since no blacks qualified. This decision reversed the unanimous determination of the Second Circuit of the US Court of Appeals, which had upheld a federal court decision to dismiss the case. This dismissal was an act of judicial restraint, since the judges deferred to the will of local officials.

This case has special salience since Judge Sonia Sotomayor, who served on the three-judge panel that dismissed the appeal, has since been nominated by President Barack Obama to fill the seat on the Supreme Court now held by Justice David Souter, who is retiring.

This decision, correctly predicted in the April 23, 2009, Glazerbeam entitled "White-Out in New Haven," was written by Justice Anthony Kennedy and concurred in by Justices Roberts, Alito, Scalia and Thomas. The Court did not rule that "affirmative action" (a euphemism for preferential treatment) to benefit minority applicants was inherently unconstitutional, but only that an employer who has administered an employment or promotional test can only discard the results if the employer has reason to believe that the test itself was discriminatory. That was not the case with the New Haven test. Ironically, Clarence Thomas, the only black justice on the Court, voted to overturn the pro-affirmative action decision, even though I believe that he benefited from the policy throughout his career. (1)

I believe that in the New Haven case the Supreme Court was right, and Judge Sotomayor and her colleagues on the Second Circuit were wrong. (See the April 23 posting for details) Yet I do not conclude that this decision, nor her judicial record taken as a whole, are just cause to deny her confirmation.

Judge Sonia Sotomayor, although originally appointed to the federal bench by Republican President George H W Bush, is clearly a liberal. In her ten years on the appellate bench, she has published 226 majority opinions and only 21 dissents. Of the dissents, 63 percent were on the liberal side, 5 percent were clearly conservative, and the rest indeterminate. (2) But the fact that she had the support of the majority of her fellow appellate judges in 91 percent of these cases indicates that she is well within the mainstream of judicial philosophy. Even in the New Haven case, 44 percent of the Supreme Court supported her position.

Sotomayor has been widely castigated for her comment that "a wise Latina woman would make a better decision" than a male judge. I consider the remark nothing but fatuous claptrap, but not the kind of thing that justifies rejecting a nominee. The last time the Senate rejected a Supreme Court nominee (Robert Bork), the reason was a lot better. (3)

Of the nine justices, only two (Ginsburg and Breyer) were appointed by a Democratic President (Bill Clinton). In addition, Justices Souter and John Paul Stevens, though appointed by Republican Presidents (Bush Sr and Ford, respectively), usually vote with the two Democratic nominees. The liberal bloc prevails only when joined by Reagan-appointee Anthony Kennedy. The confirmation of Sonia Sotomayor to replace David Souter will merely maintain the strength of the more liberal minority, but will not tip the Court in its direction.

Since Judge Sotomayor is Hispanic, Republican senators may hesitate to oppose her nomination, for fear of antagonizing the nation's largest ethnic minority. My guess is that they will give her a tough grilling on race and affirmative action at her confirmation hearing, then go along with the nomination. Barring some shocking revelation of misconduct, that will be the right thing to do.
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(1) Thomas was appointed by President George H W Bush to succeed the first black justice, Thurgood Marshall. No other black person had ever been nominated for the Supreme Court by a Republican president. His race was probably also a factor in getting several high-level appointments by President Reagan.

(2) "Soto Voce" by Jeffrey Rosen in the July 1, 2009, New Republic.

(3) As Acting Atty. General in October, 1973, Bork fired Watergate Special Prosecutor Archibald Cox, who had subpoenaed White House tapes. The White House had previously promised to allow the Special Prosecutor to pursue all leads. Elliot Richardson and William Ruckelshaus had both resigned rather than carry out President Nixon's order to fire Cox.