Sotomayor and the Ricci Case

Conservative opponents to the confirmation of Supreme Court nominee Sonia Sotomayor were provided with new ammunition in their flagging attempt to sidetrack her nomination. In a case (Ricci v. DeFastano et al.) coming out of the Second Circuit in which Judge Sotomayor participated, the Supreme Court decided in favor of the white firefighters (Ricci) who claimed the city of New Haven violated their Title VII civil rights by throwing out the results of a test required to qualify for promotion. In that test, white firefighters scored higher than the minority firefighters. The federal district judge had sided with New Haven (DeFastano et al.) and Judge Sotomayor joined with two of her colleagues in the Second Circuit to affirm the district court ruling. The Supreme Court now has overruled that decision.

This is a complex case that conservative opponents of Sotomayor have already tried to oversimplify as a straight-forward instance of racial discrimination against whites. Some will also try to paint this overturning of the Second Circuit as an indicator of Sotomayor’s lack of fitness to serve on the Court. Alas, both arguments constitute shameless efforts to influence public opinion, a public these advocates are counting on to be ill-informed about both jurisprudence and the workings of the Supreme Court.

With respect to the Supreme Court’s decision, Ricci was the winner because Justice Anthony Kennedy saw it that way. This was the fourth 5-4 decision in recent weeks in which Kennedy has decided whether the outcome will be one preferred by the Court’s four conservative justices or the four more liberal ones. In Ashcroft et al. v. Iqbal et al. Justice Kennedy wrote the Court's conservative opinion imposing limits on the liability of government supervisors. In Montejo v. Louisiana, the conservative bloc effectively reversed a 1986 precedent protecting a defendant's 6th Amendment right to have counsel present during interrogation by the police after one's arraignment. Subsequently, Kennedy joined his more liberal colleagues in Caperton et al. v. Massey Coal to rule that elected judges may have to recuse themselves in cases connected with individuals who were huge contributors to the election campaign of that judge. In each of these instances, had Kennedy sided instead with the minority of four, the Court decision would have been the reverse.

An argument that Sotomayor is somehow unqualified to be on the Court because of her affirmation of the district court’s ruling against Ricci fails on two fronts. First, circuit court judges have less latitude than do Supreme Court justices to break new ground in interpreting legal issues. Doing so would constitute the very judicial activism that conservatives purport to decry. Second, even assuming that Sotomayor would have decided against Ricci were she on the Supreme Court, and she likely would have, to say that disqualifies her from being on the Court is tantamount to saying that Justices Stevens, Breyer, Ginsburg, and Souter are unqualified to be on the Court, or that Justices Roberts, Scalia, Thomas, and Alito are unfit because of their minority opinion in the Caperton case. Interpreting the law is a complex endeavor that engenders reasonable differences of opinion. After all, without controversy, a case is not a case.

I believe it is legitimate to oppose the nomination of Sotomayor because you would prefer someone more in the mold of Alito or Scalia than of Ginsburg or Souter. Using the 5-4 decision in Ricci, however, to couch that preference in terms that question her very fitness or her bias, especially by people who know better, is fundamentally dishonest.

[This blog entry is part of the civic education project, "Vacancy on the Court," which may be found at http://supremecourt.ws]