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Discrimination case raises questions for Sotomayor

JULIE HIRSCHFELD DAVIS | 6/30/2009, 7:34 a.m.

Foes of Supreme Court nominee Sonia Sotomayor celebrated the high court's reversal of her decision in a reverse discrimination case.

The 5-4 ruling Monday, backing of reverse discrimination claims by white firefighters, is unlikely to derail Sotomayor's nomination - and it may not even sway a vote. Reaction to the decision fell almost purely along partisan lines, with Republicans cheering the decision and saying it raises serious concerns about the judge, and Democrats condemning the opinion and arguing that Sotomayor had acted appropriately.

Still, the Supreme Court's decision in the case of Ricci v. DeStefano highlighted the competing ideological strains that will shape the debate over confirming Sotomayor.
Conservatives who cheered the reversal as a blow in favor of evenhanded application of anti-discrimination laws said it deepened their questions about the judge's ability to keep her personal opinions and background out of her decisions.

"This case will only raise more questions in the minds of the American people concerning Judge Sotomayor's commitment to treat each individual fairly and not as a member of a group," said Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee.

Liberals who denounced the ruling as potentially damaging to workplace diversity efforts countered that the decision should in fact end questions about whether Sotomayor is an "activist judge."

Sotomayor and her panel "did what judges are supposed to do, they followed precedent," said Sen. Patrick Leahy, D-Vt., the Judiciary Committee's chairman. He called the overturned appeals court decision an example of "judicial restraint."

Sotomayor's supporters noted that the appeals court decision followed well-established legal precedents - something conservatives routinely say judges should do. They also pointed out that she did not actually write the appeals court decision but was rather one member of a three-judge panel that rejected the white firefighters' claim of discrimination.

At issue in the case was a decision by New Haven, Conn., to throw out a promotion exam for firefighters because virtually no minorities scored well enough to qualify. The Supreme Court ruled that the city's fear of a racial discrimination lawsuit by minority firefighters wasn't by itself enough to allow it to discriminate against the white candidates who did well enough to get promotions.

But Justice Ruth Bader Ginsburg, joined in her dissent by Justice David Souter - whom Sotomayor would replace if confirmed - said civil rights laws were never meant to prevent employers from trying to avoid discriminating against minorities. They said no firefighters were entitled to a promotion, nor were minority firefighters given preferential treatment.

Conservatives pounced on the decision to amplify their case against Sotomayor. They have criticized her harshly for saying she hoped a "wise Latina" would usually reach better conclusions than a white male without similar experiences.

"It's just one more data point that she thinks it's OK to make decisions as a judge based on your own personal preferences, gender, race, background, political agenda - instead of being a servant of the law," said Wendy Long of the Judicial Confirmation Network.

Critics also faulted Sotomayor for dispensing of the case in a short, pro forma opinion that did not discuss the merits or the precedents of the case - a move they argued was calculated to bury the decision and dodge the controversial issues it raised.

Sotomayor's allies said the panel ruling, known as a "per curiam" opinion, was typical of cases where there were clear precedents to guide the court.

Democrats seemed unconcerned about the potential fallout from the case.

The White House said there was "little political significance" to what the court decided.