It's Not What You Think
What the New Haven firefighter case really tells us about Sonia Sotomayor
By Dylan Matthews
May 28, 2009
(Photo courtesy pace.edu)Given that their target has spent almost 18 years on the federal bench, the attacks on Supreme Court nominee Sonia Sotomayor have been remarkably substance-free. From Jeffrey Rosen’s anonymously-sourced questioning of her “temperament” to the common conservative cherry-picking of her statement that appellate courts are “where policy is made,” her opinions themselves have been mostly secondary to the arguments of her detractors. One decision, however—Ricci v. DeStefano—is becoming a focal point of opposition to her nomination. Richard Cohen called the decision by Sotomayor and others “noble in its ends and atrocious in its means,” while George Will declared it “indefensible.” Closer inspection, however, reveals that such attacks are based not on careful consideration of the case, but on knee-jerk sentiment.
The decision concerned a 2003 promotion exam at the New Haven, Connecticut fire department. One hundred and eighteen candidates were applying for 15 positions at the captain and lieutenant level. Twenty-seven of the candidates were African-American. A little under half of all applicants passed the promotion exam, including many African-American candidates, but no African-American scored high enough to qualify for a position under the department’s civil service regulations. This posed a problem. Under Title VII of the Civil Rights Act of 1964, minority workers can sue their employers if they can show that a promotion exam exerts a “disparate impact” upon them. So rather than run afoul of the law, the New Haven fire department chose to discard the results of the exam.
But as the department was attempting to protect itself from a lawsuit by minority applicants, it found itself targeted by one from the overwhelmingly white applicants whose tests were invalidated. The case eventually made its way to the Second Circuit Court of Appeals, which has jurisdiction over Connecticut, New York, and Vermont and on which Sotomayor sits. The Circuit Court first ruled against the white firefighters and in favor of the city of New Haven in a unanimous, 3-0 panel decision; Sotomayor was among the three judges on the panel. Next, the Court as a whole ruled 7-6 to not rehear the case en banc—that is, in front of the whole 13-member court rather than a three-judge panel. Again, Sotomayor ruled in favor of the city of New Haven, and against the white firefighters. Having exhausted their options at the Circuit level, the white firefighters appealed to the Supreme Court, which heard the case and should rule on it shortly.
The actual legal issues involved are fairly simple. As Doug Kendall and Dahlia Lithwick wrote in a Slate article earlier this month, “the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII.” And given as, in Kendall and Lithwick’s words, “the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred,” Sotomayor and most other Second Circuit judges concluded that the city did, in fact, have cause to worry about a Title VII lawsuit.
Cohen, Will, and other critics of Sotomayor have seized upon this case to argue that she is a hard liberal with no sympathy for discriminated-against white firefighters. In particular, they have seized upon the plight of the case’s plaintiff, Frank Ricci, a dyslexic white firefighter who studied 13 hours a day and even took a second job to pay for someone to record the relevant textbooks to cassette for easier studying. Ricci earned the sixth-highest score on the exam, only to have his results invalidated along with all the other firefighters’.
While Ricci’s situation tugs at the heartstrings, neither his admirably diligent study habits nor his learning disability are relevant to the case at hand. Ruling against him does not make Sotomayor heartless. On the contrary, it shows her ability to focus on the core legal issues of a case, even when the result is politically unpalatable. That, ultimately, is what Ricci v. DeStefano can teach us about Judge Sotomayor. Even on issues that are easy to demagogue, like race and hiring, she is unafraid to make choices that may offend key constituencies or even threaten her own career. Whatever one thinks of her judicial philosophy, that kind of courage is admirable, and crucial for a Supreme Court justice.
Dylan Matthews is a staff writer at Campus Progress and writes a blog formerly known as Minipundit.
Social Bookmarking
--------
Comments
!
Here we go flirting with racial stereotyping… GW had a Hispanic attorney general, reported by everyon wahta marvelous Hispanic person, a credit to his race… until it was evident that he too was qualified based on race. Is it a conincidence both parties are Hispnic? Has to be. We can’t draw conclusions base on race.
— Billl Jackson - May 30, 07:22 PM - #Okay, I’m with you until the end. Until the end, you’re just parroting what other bloggers have said about the case. But then you add your own wrinkle, and it’s wrong. There was nothing courageous about the Ricci decision. A courageous liberal would address (and reject) the constitutional claims of the plaintiffs under the 14th Amendment, rather than address only the statutory issues. A courageous conservative would rule for the plaintiffs. A judge concerned about getting nominated by a Democratic president and confirmed by a Senate with at least 40 reactionaries would rule as Sotomayor did. Moreover, Ricci did not threaten her career, except insofar as she might have preferred it not have come up at all. But the case did come up, and she chose the most politically advantageous route. I don’t necessarily begrudge her that, but you should call a spade a spade.
Sotomayor is not a courageous liberal by any measure, as I think you probably realize, judging from your personal blog. Read some of her other opinions. She has a nasty habit of siding with law enforcement… which is quite problematic, considering the direction in which the conservatives on the Court are trying to take our Fourth Amendment jurisprudence. We already have only four votes for strong protections against police overreaching, and Sotomayor might turn out to be even less reliable than Souter.
— Sam B - Jun 2, 12:30 PM - #Also, Dylan, you really need to stop saying “given as.” You say it here once, and also on your blog, in the post about ROTC at Harvard. “Given that” is the correct usage, as you ably demonstrate in your first sentence here. It’s still trite and overused, but at least it’s correct.
— Sam B - Jun 2, 12:39 PM - #