Court Views Work Of Potential Picks

By Robert Barnes
Washington Post Staff Writer
Sunday, May 24, 2009

Two of the federal judges recommended to President Obama for the Supreme Court are having their work reviewed by the very justices they would join. And their opinions, in two of the term's most controversial cases, have been criticized by the Obama administration.

Judge Sonia Sotomayor of New York was part of a three-judge panel that upheld New Haven, Conn.'s, decision to scuttle a promotions test for firefighters after the results showed no African Americans qualified for advancement. The white firefighters who would have been promoted said the decision violated federal law and their constitutional rights.

Judge Kim McLane Wardlaw of California ruled that Arizona middle-school officials had violated the constitutional rights of a 13-year-old student by forcing her to strip to her underwear in an unsuccessful search for drugs -- in this case, ibuprofen.

Wardlaw has been recommended to the president by Sen. Dianne Feinstein (D-Calif.) and is one of a handful of Hispanic federal appeals court judges. Sotomayor is another and is considered by many to be one of those most closely considered by Obama because of her academic credentials and compelling life story.

The two cases the judges decided will be among the most contentious and important of the Supreme Court's term, with the potential to redefine student rights and the prerogatives of school officials, and to determine the extent to which an employer can take race into account when designing tests to build and promote its workforce.

The case in which Sotomayor played a role is considered the more controversial. Conservative fellow judges on the U.S. Court of Appeals for the 2nd Circuit suggested that Sotomayor and two others tried to bury important federal law and constitutional questions raised by the firefighters' suit. In an unusual dissent, they called on the Supreme Court to take the case.

"This court has failed to grapple with the questions of exceptional importance raised in this appeal," said the dissent signed by six of the appeals court's judges.

A district judge had dismissed the suit brought by firefighter Frank Ricci and others before it went to a jury, saying the city was justified in scrapping the test. She relied on New Haven's discretion under Title VII of the Civil Rights Act of 1964 to be suspicious of promotions tests that resulted in such wide disparities among the applicants, all of whom worked as firefighters for the city.

Sotomayor and the other two judges upheld the decision in a brief unsigned opinion. Only after other judges complained did the panel issue a one-paragraph ruling, again unsigned, that gave more reasoning as to why New Haven's civil service board was justified in throwing out the test.

"We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated," the ruling said. "But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected."

The circuit voted 7 to 6 not to rehear the case, but Judge José Cabranes, an appointee of President Bill Clinton, joined all of the Republican-appointed judges in dissent. He criticized the "perfunctory" nature of the panel's decision of a case that involved four briefs, a six-volume appendix of more than 1,800 pages and an hour of oral arguments.

The Supreme Court seemed unlikely to let the decision stand when it heard arguments in the case last month. The Obama administration also said it was lacking.

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