Sotomayor on tape: What she said in firefighter race case

Supreme Court nominee Sonia Sotomayor is an aggressive and, at times, dominating force on the bench.

There is nothing halfway about her. As a judge, she is tough, relentless. She does not telegraph her leanings by going easy on one lawyer while being excessively hard-nosed on another. Instead, her courtroom demeanor is that of an equal-opportunity buzz saw.

Everyone in Judge Sotomayor’s courtroom eventually bleeds a little.

That is the picture that emerges from an audio recording of a Dec. 10, 2007, oral argument presided over by Sotomayor and two other federal appeals-court judges in a controversial reverse-discrimination case called Ricci v. DeStefano.

That same case is now pending before the US Supreme Court, with a decision – and possible reversal of Sotomayor – expected later this month.

The Ricci case also is emerging as a focal point of the investigation into Sotomayor’s temperament, legal acumen, and judicial philosophy. It will probably play a central role in Senate confirmation hearings, particularly if Republicans try to make Sotomayor’s nomination into a referendum on the use of racial preferences in government employment decisions.

Roots of a discrimination case

At issue in Ricci v. DeStefano is whether the city of New Haven, Conn., acted properly in 2004 when it refused to follow through on planned promotions in the fire department after it discovered that no African-Americans had scored high enough on a civil service test to qualify to become a lieutenant or a captain.

Frank Ricci and 17 other firefighters who scored well on the test complained that the city was discriminating against them because of the color of their skin.

The city defended its action by saying that to promote the white employees but no black firefighters would cause a racial disparity in government hiring. Such a disparity is presumed unlawful under Equal Employment Opportunity Commission regulations and Title VII of the Civil Rights Act. If carried out, the promotions would leave the city vulnerable to a discrimination lawsuit by black firefighters, New Haven officials said.

The white firefighters responded by filing their own discrimination lawsuit.

A federal judge in New Haven threw the suit out in 2006. The firefighters appealed to the Second US Circuit Court of Appeals in New York City and drew a three-judge panel that included Sotomayor.

In addition to being an employment dispute, the case is a hot-button ideological battleground pitting race-based antidiscrimination measures against colorblind merit-based hiring and promotion procedures.

The Second Circuit, which covers New York, Vermont, and Connecticut, has three longstanding legal precedents on the books supporting the city’s position in the Ricci case. But six months before the Second Circuit heard arguments in the case, the US Supreme Court decided a pair of public-school desegregation cases, announcing a new level of hostility toward government use of race-based methods to distribute burdens or benefits.

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