Judge Sonia Sotomayor's Supreme Court nomination is being met with questions about her views on race and gender. Her opponents are focusing on one decision, now on appeal to the U.S. Supreme Court, focusing on the incendiary issue of race, testing and allegations of special treatment for minorities.
At issue in the case were promotions in the New Haven, Conn., fire department. The city decided its promotion test was flawed because the results would have promoted no African-Americans — and that if it didn't design a better test, it would be sued by minority firefighters under the testing provisions of the Civil Rights Act and very likely lose. Instead, the city was sued by a group of white firefighters who scored well on the test and said they were denied promotions because of their race.
A federal district court judge, in a long opinion, said the city was discriminating against no one because all of the test results were discarded and nobody was promoted. Sotomayor was on a three-judge panel that reviewed that decision.
In a six-sentence order, the panel said the New Haven Civil Service Board had no good alternatives, because the test appeared to violate a provision of federal law that treats with grave suspicion tests that produce such racially disproportionate results.
"We are not unsympathetic to the frustration of the white firefighters who studied hard and scored high on the promotion exam," said the panel in its brief, unsigned opinion. "But the city was within its rights to take the steps necessary to avoid liability."
Red Flag To Supreme Court
Judge Jose Cabranes, who was not on the panel, wrote a long opinion that unsuccessfully sought to have the full appeals court review the matter, contending that the decision could lead to quotas.
His opinion was a red flag to the U.S. Supreme Court, which decided to review the case and heard arguments last month. At the oral argument, questions posed by the justices suggested strongly that the appeals court ruling would be reversed.
The high court's opinion is expected in late June — probably just weeks before a confirmation hearing — and it could be seen as a repudiation of Sotomayor.
At a White House teleconference this week, University of North Carolina constitutional scholar William Marshall contended that the New Haven decision is an example of judicial caution, since the panel was only following the prevailing law in the circuit.
"It strikes me that's a hallmark of judicial restraint," Marshall says. "It's not a hallmark of judicial activism — and that particular approach is something that indicates that she is very measured and she is very cautious."
For opponents of the Sotomayor nomination, the New Haven case fits nicely with claims that she is a judge who engages in "identity politics." The conservative Judicial Confirmation Network has a new ad up on its Web site quoting from a lecture Sotomayor gave in 2001 at Berkeley Law School. In the address, she said a "wise Latina woman" would more often than not reach a "better conclusion" than a white male.
Because of that line in her speech, as well as the firefighters case, conservative talk show host Rush Limbaugh has called Sotomayor a reverse discriminator. Former GOP House Speaker Newt Gingrich has tweeted that she is a racist.
Harvard law professor Charles Ogletree sees her statement as an appropriate speech for a symposium aimed at getting minority students to believe they can aspire to being judges.
"I would have put it differently, but I don't criticize her for trying to encourage people to think that they can make a contribution," Ogletree says. "And they shouldn't assume that because the people that teach them, that hire them, that evaluate them and supervise them are white males, [they are] the only people with good ideas."
Sotomayor's speech is an exploration of what difference it makes, if any, to have women and minorities serving as judges. Noting that an all-white male Supreme Court struck down school segregation in 1954, she argued nonetheless that not all judges take the time to understand the experiences of others.
Personal experiences, she said, can affect the facts that judges choose to see, and she pointed to studies showing that women on state appellate courts tend to vote more often than their male counterparts to uphold women's claims of sex discrimination.
Quoting former Justice Sandra Day O'Connor's statement that a wise old man and a wise old woman will reach the same conclusion in deciding cases, Sotomayor said she was not sure she agreed.
First, Sotomayor said, there can never be a universal definition of wise. After all, some of the court's most famous justices — Oliver Wendell Holmes and Benjamin Cardozo — upheld overt race and sex discrimination in society.
Second, she said, "I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn't lived that life."
The White House sought to defuse the issue Friday, saying Sotomayor thinks that line was a poor choice of words.
She will undoubtedly spend more time explaining it at her confirmation hearing.