Political opportunists may try to paint Supreme Court nominee Sonia Sotomayor as a lily-livered activist judge now that the nation's highest court has decided that white firefighters in Connecticut were discriminated against — a reversal of an appeals ruling joined by Ms. Sotomayor.
But the justices' 5-4 decision in the New Haven case (Ricci v. DeStefano) is hardly a reflection of Ms. Sotomayor's long judicial career and thoughtful decisions. If anything, her strong record on the bench – she has the most experience as a judge of any previous nominee now on the court – offers a refreshing note of moderation and respect for established legal precedent.
Almost 10 years before Ms. Sotomayor's panel heard the Ricci case, another Second Circuit panel that included three judges nominated by Republican presidents made the same call in a similar case involving Nassau County. Another court in Memphis also reached the same conclusion in an unpublished summary order in a comparable case.
Unfortunately, the justices' majority decision did not set clear parameters for public and private employers to avoid charges of discrimination. The ruling said test results have to be accepted unless there's clear evidence that a test was flawed and caused "disparate impact" that discriminates against one group over another. That evidence was not spelled out – an invitation for much more litigation to come.
In the New Haven case, the appellate court that included Ms. Sotomayor had backed a lower court judge's decision to toss out the white firefighters' case claiming discrimination. No black firefighters had ranked high enough on a written and oral test, designed by a diversity testing firm, and the city's rule of taking the top-three grades to fill positions would mean only whites would be promoted to lieutenants or captains. The city legitimately feared it would get hit by lawsuits from African-American firefighters.
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