Judging Sotomayor By Nathan Mehrens

07/15/2009

Judge Sonia Sotomayor was rebuked on June 29 by the Supreme Court for how she handled the Ricci v. DeStefano case. Ricci thus presents an opportunity to examine whether Sotomayor, President Obama’s nominee to the Court, has the requisite ability to recognize significant issues in cases.

Ricci involves a fire department intentionally discriminating against the hiring of certain firefighters because of race. The fire department administered an exam to determine promotion eligibility. The department then tossed out the results because it didn’t like the racial composition of group that passed, i.e., not enough applicants with certain skin colors. This occurred even though the exam was specifically designed to be race neutral. The passing firefighters were denied their promotions and filed a civil rights lawsuit.

These firefighters reasonably believe that having the best qualified personnel is more important than the proper racial mix for the sake of political correctness. As one stated, “When your life’s on the line, second best may not be good enough.”

Sounds simple enough but unfortunately Congress enshrined racial discrimination into law by allowing lawsuits against employers who use facially neutral employment criteria, such as exams, that result in a “disparate impact” on persons of a particular racial group. Employers must show that the criteria are a business necessity to defend against lawsuits.

Employers are in a lose, lose situation because the Civil Rights Act prohibits intentional racial discrimination but also allows lawsuits against them for unintentional racial discrimination. Those following civil rights litigation know this has been hotly contested. One would thus expect appeals courts to carefully weigh cases like Ricci.

Sotomayor’s panel didn’t. Instead of carefully analyzing the nuances presented, the panel initially issued an unpublished, unsigned summary order. This prompted another circuit judge to request a poll of fellow judges on whether to rehear the case. After the poll was conducted the panel withdrew the summary order, issuing a single-paragraph per curiam opinion adopting the district court’s analysis.

Sotomayor’s court deemed the case so unimportant that it didn’t even merit a signed opinion. The full 2nd Circuit then denied rehearing, prompting dissents highlighting the panel’s lack
of analysis. One dissenter “hope[d] that the Supreme Court will resolve the issues of great significance raised by this case.” He stated further, “This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

The Supreme Court agreed and provided 89 pages of analysis including concurring and dissenting opinions, a far cry from the single-paragraph treatment afforded by Sotomayor.

Fortunately the Court resolved the issues in Ricci, overturning the 2nd Circuit’s unjust and unfair decision. This happened because enough Justices recognized substantial issues presented by the case, something Sotomayor apparently did not.

Thousands of cases are appealed to the Court every year, but few are granted review. Supreme Court Justices need to be able to identify issues and cases meriting attention, weeding out those that don’t.

Sotomayor’s confirmation hearings began on Monday. Senators should take this opportunity to question her on the process she will use when deciding whether to accept cases for review. Sotomayor’s actions in Ricci suggest at minimum that she lacks the willingness to tackle tough issues.

ALG News Contributor Nathan Paul Mehrens is a member of the Bar of the U.S. Supreme Court.