In the firefighters case–on which the Supreme Court heard arguments in April — the city of New Haven, Conn., has defended its denial of promotions to the white firefighters, who had the highest scores on a test of job-related skills, as necessary to avoid a disparate-impact lawsuit by blacks. None of the African-Americans did well enough on the test to qualify for promotion.
Two Hispanic-American judges on the U.S. Court of Appeals for the 2nd Circuit — both appointed by President Clinton — took dramatically contrasting positions last year on the white firefighters’ anti-discrimination lawsuit against the city.
A three-judge panel including Sotomayor upheld, and adopted as its own, a federal District judge’s ruling against the white firefighters. The panel set aside the anti-discrimination principle on the grounds that New Haven feared (among other things) that promoting the whites “would subject the city to public criticism” and would probably result in a disparate-impact lawsuit by blacks “that, for political reasons, the city did not want to defend.”
So much for the anti-discrimination principle — not to mention President Obama’s professed desire to find judges with “empathy” for, among others, wronged workers who sue employers and for people who invoke their “individual rights” against governments.
The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel’s curiously “perfunctory disposition” that he sought to have it reconsidered by the full 2nd Circuit. He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve “an unconstitutional racial quota or set-aside.” He added:
“At its core, this 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 enough of another?”
As Rubin notes, the case has reached the Supreme Court, and the decision made by the three-judge panel drew a lot of fire from Judge Sotomayor’s would-be colleagues:
Justice Antonin Scalia scoffed at the claim that rejecting the results was racially neutral. “It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”
Chief Justice John Roberts, who views with distaste nearly all racially conscious government actions, suggested that the city junked the results because people of the wrong race came out on top. Does the city “get do-overs until it comes out right?” he asked. The court’s four solid conservatives appeared likely to get a fifth vote in Justice Anthony Kennedy, who has found race-conscious programs acceptable only if they don’t target specific individuals.
Rubin emphasizes that despite the supposed political dangers of actually adopting an attitude of reasoned skepticism towards what would be a lifetime appointment, the country is ill-served by having Senators scared away from doing their Constitutional duties, duties which involve asking tough questions of Judge Sotomayor, and actually voting against her if she cannot answer them to the satisfaction of the Senators. I never saw any Republican Supreme Court nominees treated more generously since the lovefest surrounding David Souter, and I saw all of the post-Souter GOP Supreme Court nominees treated less generously (Harriet Miers was the only one of those post-Souter GOP nominees who deserved the ungenerous treatment). At the risk of repeating this point, when Barack Obama saw fit to vote against both John Roberts and Samuel Alito, and when he saw fit to actually work with Joe Biden and Hillary Clinton to filibuster the Alito nomination, the Obama Administration is in no position whatsoever to complain if Senators look askance at the Sotomayor nomination.