Sonia Sotomayor, nominated by President Obama this morning to be our nation’s next Supreme Court Justice, is being hailed as an old-fashioned American success story. Born to Bronx, New York, Puerto Rican parents of modest means and educated at Princeton University and Yale Law School, in 1992 she became a federal district judge and in 1998 a federal appeals judge. Obama chose her in part because of his stated preference for life experiences that bring “empathy” to the bench. He thus far has sidestepped the issue of whether he favors mandatory racial and ethnic hiring quotas. But given Sotomayor’s position in a class-action appeals case originating in Connecticut, he may not have that luxury much longer.
The case, now under review by the High Court, is Ricci v. DeStefano. Her ruling as a circuit judge speaks volumes about the direction this country is likely to go if she receives Senate approval to fill the vacancy left by retiring Justice David Souter. In a nutshell, Sotomayor held that the City of New Haven could disregard promotional test scores for local fire department employees because of the lack of blacks whose scores were high enough to be promoted. The details of the case reveal that her much-touted empathy is highly selective.
Frank Ricci has been a New Haven fireman for the last 11 years. Back in 2003 the New Haven fire department advertised eight open positions for lieutenant. Ricci was among the applicants. Though dyslexic, he pulled out the stops. Six months before taking the promotion test, he quit his second job to study for the exam. He bought about $1,000 of textbooks, had a friend read their contents onto tapes, and reviewed the material every chance he got. Of the 77 candidates taking the test, Ricci finished sixth. Presumably, this qualified him to become lieutenant. His effort had paid off. Or had it? The City of New Haven thought otherwise.
Of the test takers, 19 were black. After the tests were scored, none of the blacks scored high enough to qualify for a promotion. Seven of the top eight scorers were white and the other was Latino. The City, dissatisfied, invoked its affirmative action policy, arguing that the scores could have a “disparate impact” on the local black community and thus could be vulnerable to a civil-rights lawsuit by black firefighters. The City proceeded to scrap the results and call for a revamped test form, one presumably capable of producing a more “fair” outcome.
Mr. Ricci, rather than accept his fate, sued, alleging reverse discrimination. He would be joined by more than a dozen and a half co-plaintiffs. A federal district court ruled for the municipal government. Ricci appealed. By a 3-0 margin, the Second Circuit Court of Appeals affirmed the lower court in a per curiam ruling. Sotomayor wrote the terse half-page opinion invalidating the exam results, leaving Frank Ricci and his co-plaintiffs in the lurch. This past April, the Supreme Court heard the case.
This particular case involved potentially aggrieved blacks. One need not wonder how Sotomayor would have reacted had the minority group in question been Hispanic. In 2001, as featured speaker at the Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) Law School, she remarked: “I would hope that a wise Latina with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” Leaving aside the dubious implication that being a Hispanic female provides a “richer” and “wiser” range of experiences than being a white male, Judge Sotomayor was saying, unmistakably, that her personal status gives her added insight into an understanding of the law. White men, for their part, should grit their teeth and stand in back of the line rather than complain. Someone like this should not be sitting on the U.S. Supreme Court – or indeed, any court. (Washington Post, 5/7/09; elpasotimes.com, 5/26/09; other sources).