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Sotomayor on tape: What she said in firefighter race case

She asked probing questions of each side in the reverse-discrimination suit. But the circuit court's 135-word summary order rubbed some the wrong way.

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Justice Anthony Kennedy provided the deciding fifth vote. But rather than endorsing his conservative colleagues’ strict colorblind approach in every instance, Justice Kennedy left the door open for some race-conscious remedies while urging officials to be creative in exploring approaches that do not rely on race.

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The Supreme Court action did not overturn the Second Circuit precedents cited in the Ricci case, but it weakened them and raised questions about their long-term viability.

Thus, the stage was set for potential constitutional fireworks in the New Haven firefighter case. How would the Second Circuit panel – and Sotomayor – reconcile the conflicting legal precedents?

Throughout the argument, Sotomayor was fully engaged in the case, testing theories and questioning assertions of fact in ways that strongly suggest extensive prehearing research and preparation.

At times during the hour-long hearing, Sotomayor swung into action, probing flimsy parts of a lawyer’s argument to lay bare weaknesses and inconsistencies. The firefighters’ lawyer, Karen Torre, wasn’t the only target. Sotomayor also ripped into the presentation of New Haven’s lawyer, Richard Roberts. Fifty-five minutes into the argument, it was impossible to predict how she might vote based solely on her questions and comments from the bench.

The royal ‘we’

There was one moment, however, when the judge may have tipped her hand when she used the royal “we” in response to a comment made by Ms. Torre.

The firefighters’ lawyer was urging the judges not to treat her clients as unskilled workers. “This is a command position in a first-responder agency,” she said, not garbage collectors. The safety of the firefighters and the community is at stake, the lawyer said.

Sotomayor interrupted Torre and made an uncharacteristic advocate-like statement. “Counsel, we are not suggesting unqualified people be hired – the city is not suggesting that, all right.”

It is unclear who the judge was referring to as “we.” But it is clear that it did not include the firefighters and their supporters.

The judge then explained her point: “If your test is going to always put a certain group at the bottom of the pass rate so they are never, ever, going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try ... to develop that?”

The city’s professed concern about violating Title VII was merely pretext to cover up racial politics in New Haven, Torre told the court. The lawyer accused city officials of engaging in “race racketeering” by blocking the promotion of her clients to save the jobs for African-American “cronies” of a prominent leader in New Haven’s black community.

“The state is commanded, Judge Sotomayor, to not use the race of its citizens in a decision ever, unless it has the basis identified by the Supreme Court,” Torre said.

“But that is going too far, counsel,” Sotomayor replied, “because the law also says you can’t have a racially neutral policy that adversely affects minorities unless there is a business necessity.”

Torre said the civil service test involved a business necessity because its content was directly tied to job performance. She said the test was designed to identify the firefighters who best know what to do as officers in charge when they arrive at the scene of a fire or other disaster. “The law is clear on this..., and the Supreme Court jurisprudence is clear,” Torre said.