The Ricci Case And The Sotomayor Nomination

The Supreme Court just handed down their decision in the Ricci case, reversing with a 5-4 count the lower court opinion that the city of New Haven can refuse to apply a promotions test for firefighters because no African-Americans passed it. The city feared a discrimination lawsuit over the test, but the Court basically waved that away.

What's notable is that this case was previously decided by the 2nd Circuit Court of Appeals by a three-judge panel that included Sonia Sotomayor. And so now we'll hear all about that honky-hating judge reversed again (how does this affect her "reversal rate"?) and the manly men of the Supreme Court helping out those poor white firefighters who worked so hard to pass that test.

Except that Courts of Appeals, who generally follow prior precedent in cases like this, cannot make the sweeping changes that can be made at the SCOTUS level. Far from being a slave to "empathy," Sotomayor followed the law available to her in concurring with the majority decision on her Court. In fact, as Sam Alito wrote in his concurrence today, "But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law . . . And that is what, until today's decision, has been denied them." The Second Court had no precedent on which to rely to offer that enforcement, and if Sotomayor reversed the District Court ruling in Ricci, she would have been relying on sympathy. Which is what her critics say she always relies on.

Tom Goldstein at SCOTUSBlog doesn't expect this to affect her nomination much:

Tom Goldstein: Various comments ask about the effect of Ricci on the Sotomayor hearings. The deicsion will certainly be front and center. Her position is the same as Justice Souter's, so I think it it comes across mostly as an ideological disagreement [...]

Re the intersection of Ricci and the Sotomayor nomination, the Supreme Court opinoins have almost no discussion of the court of appeals' ruling. Justice Ginsburg has a short discussion of how the ruling reflected prior Second Circuit precedent.

But of course, he is correct about the decision being front and center. Those on the right wing will certainly spin this as proof positive of Sotomayor's incompetence, or her hatred of white people, etc. This is basically the only thing that could possibly derail her at this point, and the opposition will come up with whatever distortions necessary to try to ensure that. But the charge rings pretty hollow and is based on a misunderstanding of precedent.