I will avoid hyperbole and not paint Judge Sotomayor as a racist as some have. But, never the less I am troubled by her ruling in the Frank Ricci case (detailed in the article). It leads me to believe that she represents a social school of thought that believes that state should engineer equal outcomes rather than pursue equal opportunity.
A Sotomayor Ruling Gets Scrutiny
By SUZANNE SATALINE, JESS BRAVIN and NATHAN KOPPEL
NEW HAVEN, Conn. -- With a single paragraph, Judge Sonia Sotomayor and two colleagues dashed the hopes of firefighters here who believed they'd scored high enough on exams to win a promotion.
The three federal appeals judges said last year the city had the right to reject the results of two tests because no black firefighters scored high enough.
The ruling is now turning into perhaps the most contentious of the 4,000 Judge Sotomayor made in 17 years on the federal bench, and it is likely to come up in her Supreme Court confirmation hearings. The justices whom she may soon join on the high court are expected to rule within weeks on the case, which they took on an appeal by white firefighters.
Firefighters here said Thursday that court decisions so far have left bitterness in the department. Several men seeking a lieutenant's job gave up second jobs to devote themselves to studying, said their lieutenant.
"They know if they read the books and studied, it means more money in their pockets for the rest of their lives," said Lieutenant James Blakeslee, a 14-year veteran. "To Sotomayor, it didn't cost her a dime. It cost these guys a lifetime."
Company members said promotions could translate into annual salary boosts of several thousand dollars, as well as significantly more pension money.
A total of 118 applicants took the two tests for promotion to lieutenant or captain in late 2003, and 59 earned passing scores. Because there were limited vacancies, only the top scorers were eligible for promotion -- a group of 17 whites, and two Hispanics. None of the 27 black firefighters with passing scores was eligible.
New Haven city lawyers advised the city's Civil Service Board to reject the results, warning the city could be exposed to a race-discrimination lawsuit by minority firefighters if it let the exam stand. The board heard conflicting views on whether the test could have been re-engineered to have a less disparate impact. It split 2-2, which meant the exam wasn't certified.
Firefighters whose scores gave them a good chance at being promoted filed suit, alleging their rights had been violated under the 1964 Civil Rights Act and the Constitution's equal protection clause. The lead plaintiff, Frank Ricci, who is dyslexic, said he prepared exhaustively for the test and paid someone to record study materials so he could learn by listening.
At hearings in July 2006, the firefighters' lawyer, Karen Lee Torre, argued the city tossed the exams because elected officials were worried about losing support among black voters.
The city's attorney, Richard Roberts, denied the allegation. He said the city's only motive was avoiding a discrimination suit from minority firefighters. He noted during the trial that the independent Civil Service Board had made the decision.
U.S. District Judge Janet Bond Arterton, a Clinton appointee, ruled for the city. She concluded the city's effort to avoid discriminating against minority firefighters was "race neutral," because "all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process."
The firefighters appealed her ruling and the case landed with a three-judge panel at the Second Circuit Court of Appeals in 2007.
In oral arguments, Judge Sotomayor dominated the questioning in her trademark aggressive style and tried to poke holes in the logic of both sides. At one point, in sharp questioning of Ms. Torre, the judge suggested it would make sense for the city to say, "Let's look at it and see if there's a better way of doing this."
"We're not suggesting that unqualified people be hired," Judge Sotomayor told Ms. Torre at the argument's end. But "if your test is going to always put a certain group at the bottom of the pass rate so they're never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try to look and see if it can develop that?"
Ultimately Judge Sotomayor and her colleagues, Robert Sack and Rosemary Pooler, upheld the district judge's decision with brief comments. They called the earlier ruling "thorough, thoughtful and well-reasoned." The full Second Circuit declined to rehear the case, prompting criticism from one of the circuit's judges, Jose Cabranes, who suggested the firefighters had been given short shrift.
Judge Cabranes said at the time that the panel had "failed to grapple with the questions of exceptional importance raised in this appeal." On Thursday, he said, "It is in the nature of appellate judging that one disagrees from time to time with a colleague." He added that he was proud of Judge Sotomayor.
At Supreme Court oral arguments in April, Justice Antonin Scalia scoffed at the claim that rejecting the results was racially neutral. "It's neutral because you throw it out for the losers as well as for the winners?" he asked. "That's neutrality?"
Chief Justice John Roberts, who views with distaste nearly all racially conscious government actions, suggested that the city junked the results because people of the wrong race came out on top. Does the city "get do-overs until it comes out right?" he asked. The court's four solid conservatives appeared likely to get a fifth vote in Justice Anthony Kennedy, who has found race-conscious programs acceptable only if they don't target specific individuals.
The justice who seemed most sympathetic to New Haven's position was the man Justice Sotomayor would replace. New Haven was placed in a "damned if you do, damned if you don't situation," said Justice David Souter.
Back in New Haven, the promotions are on hold, and firefighters still debate whether the test was fair. One white firefighter who took the test said it was "as well-run as you possibly could have" and asked realistic questions about emergency situations.
Should the Supreme Court reverse the Second Circuit, the complaining firefighters would have a chance to prove their claim at trial.
—Evan Perez contributed to this article.
http://online.wsj.com/article/SB124354041637563491.html
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