High Court Overturns Ricci: Bad News for Sotomayor?

I think it fair to say that unequal treatment to achieve equal results, as opposed to fair treatment in which the outcome (racial parity of some sort) is irrelevant, is not what most Americans prefer; they want a level playing field, not the distribution of blue ribbons by racial makeup. Therefore, I have no doubt that today’s decision will strike a welcome chord for most voters.

A very recent Quinnipiac Poll bears this out:

American voters say 55 - 36 percent that affirmative action should be abolished, and disagree 71 - 19 percent with Supreme Court nominee Sonia Sotomayor's ruling in the New Haven firefighters' case, according to a Quinnipiac University poll released today.

More than 70 percent of voters say diversity is not a good enough reason to give minorities preferential treatment in competition for government or private sector jobs, the independent Quinnipiac (KWIN-uh-pe-ack) University survey of more than 3,000 voters finds.

It provides employers with a countervailing obligation and will make unfair treatment to achieve such parity for the sake of diversity as risky as deliberately rigging tests to achieve a desired but unfair result.

What impact will this have on the Sotomayor nomination?

Some people like Kenneth Duberstein, who was Ronald Reagan’s chief of staff, thinks the hearings will have a major impact on how the voters will measure her fitness for the post and may affect her nomination.

"The hearings are fundamental because America really tunes in on that opening day to see whether the person can handle the pressure, and to listen to her personal story and the way she responds to questions," he said. "That is the make-or-break day."

Arlen Specter disagreed:

In an interview, Sen. Arlen Specter, D-Pa., who presided over the confirmations of Justices John Roberts and Samuel Alito as the Republican chairman of the committee, was even blunter about the hearings. "Oh, they're not too important," he said sarcastically. "The only thing that's at stake is whether she gets on the Supreme Court."

There is no doubt that prior to the announcement of the Ricci decision, the panel would be terribly circumscribed in questioning Sotomayor about her views on affirmative action which led her to join in the now reversed opinion. They are freer now to ask more direct questions. And prior to today, her chances of confirmation were insurmountable.

Sotomayor's views are at odds with those of most Americans, and the panel is now free to highlight that fact and remind the voters that one more vacancy in the majority of this panel under the Obama administration and we will be certain to revert, however covertly, to racial and ethnic bean counting. This may put some Democrats who might have been willing to go along with the nomination unwilling to do so, provided they are subject to a great deal of constituent pressure.

For those like Justice Ginsburg, who are enthusiastically in favor of a Hispanic or another woman judge on the court, let’s remind them of Justice Ginsburg’s own words in support of the lower court’s decision in Ricci:

[T]he white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion.