The nomination of Sonia Sotomayor to the Supreme Court has vaulted the president, the Senate, and the entire country into a discussion about race and the meaning of equal protection under the law. The president could have gone another route — choosing, for example, a distinguished justice like Diane Wood who did not have controversial decisions, speeches, and law review articles suggesting that there are different strains of jurisprudence depending on the ethnicity of the judge. But he did not. And now Eric Holder will have his wish — everyone is talking about race.
The much-discussed New Haven firefighter case encapsulates many of the arguments which rage today about “diversity,” race, and equal protection. And it suggests Sotomayor is not the sort of judge to enforce the colorblind conception of the Constitution which was the foundation of the civil rights movement and which is set out in the plain language of the 14th Amendment. (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
Frank Ricci, a dyslexic white firefighter, brought suit after the city of New Haven threw out the test scores on a promotion exam which none of the African American firefighters passed. Stuart Taylor explains:
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.”
“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?”
Sotomayor’s argument in support of the city is a strange one indeed. One wonders how we have gotten to the point at which city officials are cowed into abandoning equal treatment of its citizens for fear of “bad press” and of the “civil rights” lobby, which stands ready to pounce on any employer (private or public) whose “numbers” don’t look “right.” (The city didn’t say that its test was defective, only that it would have to go to the trouble of defending the exam against the sort of meritless claim that is all too popular these days.)