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No Peril Seen for Sotomayor

By Jerry Markon and Paul Kane
Washington Post Staff Writers
Tuesday, June 30, 2009

The Supreme Court's rejection of a decision against white firefighters endorsed by Judge Sonia Sotomayor gives Republicans a renewed chance to attack her speeches and writings but is not expected to imperil her confirmation to the high court, political and legal sources said yesterday.

The decision that the New Haven, Conn., firefighters were unfairly denied promotions because of their race comes two weeks before Sotomayor's Senate confirmation hearings and is an unwelcome distraction for the White House from what had seemed like a relatively smooth confirmation process. It is also somewhat of an embarrassment, forcing administration officials to explain why the court overturned a controversial decision backed by its prospective next member.

Sotomayor was on the three-judge appellate court panel that last year upheld New Haven's decision to throw out a promotion test it gave the firefighters when no African Americans and only two Hispanics qualified for advancement. The 134-word order has been the flash point for much of the debate since President Obama nominated Sotomayor for the Supreme Court. The high court yesterday narrowly reversed the appellate court decision, ruling 5-4 in favor of the white firefighters who sued New Haven. It was the fourth time the Supreme Court has overturned Sotomayor; it has upheld her decisions three times. Experts say the court customarily reverses three-quarters of the cases it reviews.

As reactions broke along the partisan lines seen yesterday on the Supreme Court itself, conservatives called the decision a repudiation of Sotomayor. They signaled they will use it to sharply question her about her views on discrimination, especially in conjunction with her 2001 remark that a "wise Latina woman" would usually decide cases better than a white man.

"Every citizen has a right to have his or her case heard by a judge who will rule on the laws, the facts and the Constitution -- and not play favorites," said Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee. "This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and political views should influence a judge's decision."

Supporters of Sotomayor, who will be the first Hispanic justice if confirmed, accused Republicans of inflating her role in the case and said her original decision was a model of judicial restraint based on legal precedent -- what conservatives say they want in a justice.

"I don't think it will persuade anybody who is inclined one way or another to change their views about Sotomayor," said Tom Goldstein, a Washington lawyer and founder of the Scotusblog Web site.

White House officials spent the morning reaching out to Judiciary Committee members to make their case that the ruling should have little bearing on the nomination.

"The issue from the Sotomayor perspective is: Does this call into question anything about her judgment? And it doesn't," said one senior White House official, speaking on the condition of anonymity. " I think it's going to be hard for people to explain why this really should be a confirmation issue for her," the official added.

The administration and Sotomayor supporters put forth the message they had been preparing for weeks: that the case marked her not as a judicial activist or even a supporter of minority rights but as a conservative jurist. Sen. Charles E. Schumer (D-N.Y.), a senior Judiciary Committee member, said that Sotomayor's decision "was clearly in the mainstream" and that the Supreme Court's repudiation "in no way undercut" her prospects for confirmation.

White House press secretary Robert Gibbs said there was "little political significance to whatever the court decided today in terms of Judge Sotomayor."

But Hans von Spakovsky, a legal scholar at the conservative Heritage Foundation and a former Justice Department official, said the case raised questions about Sotomayor's fitness to serve on the high court. "Judge Sotomayor's willingness . . . to allow her admitted personal biases towards certain racial and ethnic groups affect her judging raises serious questions about her qualifications to sit on the Supreme Court," he said.

Staff writer Michael D. Shear contributed to this report.

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