Firefighters' Case Shouldn't Haunt Sotomayor

By Eva Rodriguez Make no mistake about it: The case of Ricci v. DeStefano will come back to haunt Obama Supreme Court nominee Sonia Sotomayor. In a fair world, it wouldn't. A sharply divided 5-4 Supreme Court this morning overruled a decision issued by Sotomayor and two colleagues on the New York-based federal appeals court. Sotomayor upheld New Haven, Conn.'s decision to throw out tests for leadership posts in its fire department. The city took the action after test results showed that only white or Hispanic firefighters scored high enough to qualify for promotion; under this test, no African-American firefighters made the grade. Yet New Haven had almost no choice but to take a second look at the test because of Title VII, a federal law that, among other things, requires employers to question the fairness of employment actions that appear to have had an adverse or "disparate impact" on minorities. When New Haven decided to ditch the test and hold off on promotions, it was sued by white firefighters who claimed they were being discriminated against merely because of their race. A federal trial judge sided with New Haven, saying that it acted properly under federal law and that it would have certainly been sued by African-American firefighters had it decided to certify the lop-sided test results. The appeals court panel on which Sotomayor sat summarily affirmed the lower court judge in a surprisingly brief one-paragraph ruling. I think it was a mistake for Sotomayor and her colleagues not to have issued a fully fleshed-out decision explaining their rationale for backing New Haven. I think such an approach was called for in a case that presented novel issues not squarely addressed before by the Supreme Court. In fact, six members of the New York appeals court argued for a rehearing so that the full-court could tackle the case; the remaining seven members of the court voted down that option, essentially standing behind the panel's handling of the matter. Critics of Sotomayor, whose confirmation hearing is scheduled to begin July 13, have jumped on this case to hammer the Supreme Court nominee. They allege, among other things, that she rubber-stamped the trial court in order to bury this hot-button case and that her vote in the case shows her pushing forward her agenda for identity politics. These allegations are unfair and not grounded in fact. The New York appeals court has adopted fairly quirky rules that have allowed for a good number of "rubber stamp" decisions on otherwise weighty cases. Plus, Sotomayor did not act in this case alone; six other judges on the court agreed to adopt the trial court's logic without need of publishing an extensive appeals court decision. I would have sided with the judges who wanted to rehear the matter, but there is no evidence that Sotomayor voted the way she did in order to hide the ball or secretly advance a political agenda. Critics should stop making such charged assertions unless they have facts to back them up. I'm still waiting.