Why one case may make a difference for Sotomayor

Judge Sonia Sotomayor has made more than 4,000 rulings in her 17 years as a federal judge, so singling out one of them for questioning or criticism would seem terribly petty if it weren’t so important.

It deals with an issue raised by then-candidate Barack Obama in his remarkable speech on race during the campaign when he expressed sympathy for whites who hear “an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed.â€

Those are the whites who were at the center of Sotomayor’s widely discussed and disputed decision on a three-judge panel that ruled the city of New Haven was right when it denied promotion to 15 firefighters because of their race — to put it as bluntly as one can.

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In 2003, 118 New Haven firefighters took a test to determine which of them would fill seven vacancies for lieutenant and eight for captain. Twenty-seven black firefighters took the test but none of them scored high enough to be promoted, so the city threw out the test, promoted no one and justified its decision by claiming, since no one was promoted, no one was hurt.

This was true, if you didn’t count the firefighters who took the test, studied hard to pass it and expected to be judged by their performance, not their pigmentation.

These firefighters sued, but a federal court agreed with New Haven and the firefighters, 19 whites and one Hispanic, appealed. Sotomayor and two other judges from the Second District Court of Appeals also upheld the city.

The reasons cited by the panel do not impress. New Haven was acting on the advice of its lawyers who said promoting those with the highest test scores would have resulted in a successful law suit by the black firefighters and worse, promoting the whites “would subject the city to public criticism†in a city that is 60 percent black.

There has been speculation, sure to come up at Sotomayor’s confirmation, that the panel’s brief, unsigned opinion, merely agreeing with the lower court without examining the ruling’s constitutional, equal treatment ramifications, was an attempt by Sotomayor and the others to keep a shaky affirmative action case from reaching the Supreme Court and a possible overturn.

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If so, they failed. The court heard the New Haven case in April and the betting is it will be overturned in June, before Judge Sotomayor will be be testifying before the Senate Judiciary Committee.

The panel’s cavalier dismissal of the case had so disturbed Sotomayor’s fellow Second Circuit judge, Jose Cabranes, that he successfully moved to have it reconsidered by the entire Second Circuit. But the full court also found for New Haven by a vote of 7 to 6.

In an angry dissent, Cabranes, a moderate, stressed that the case “might involve an unconstitutional racial quota. At its core, the case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not the other?†That powerful dissent apparently got the Supreme Court’s attention.

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All of this goes to the heart of a decades-old dispute over affirmative action and whether its time has come and gone. Ever since medical student Allan Bakke won the right to attend the University of California medical school in 1978 by arguing in the Supreme Court that his failure to gain admittance was due to reverse discrimination, affirmative action has been under attack. It survived the Bakke decision because Justice Lewis Powell broke a 4-4 tie by supporting both affirmative action and Bakke’s admission. It has undergone similar trials and raised similar doubts ever since.

There is no little irony in the fact that Sotomayor’s role in the New Haven case comes after President Obama was attacked by the right for praising her empathy, her ability, in the simplest terms, to walk in another’s shoes, which the Limbaughs and Roves immediately labeled a code word for judicial activism.

In the New Haven case, the person most deserving of an empathetic hearing was the firefighter/plaintiff who gave his name to the suit, Frank Ricci. A dyslexic, Ricci quit a second job to study and paid $1,000 to record the books he needed for the exam.

He finished sixth and would be a lieutenant today if he weren’t white and therein lies the problem Sotomayor faces before the Judiciary Committee. Was her vote in conflict with Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment? Or was she seeking to preserve, at all costs, affirmative action, which had righted so many wrongs against so many minorities?

That’s why this one case, out of the 4,000 she has heard, is so important.

Dick Ahles is a retired journalist from Simsbury. E-mail him at dahles@hotmail.com.