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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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Roberts told the appeals-court panel that whether the test would pass muster in a validation study was not the issue.

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“Why isn’t it the issue?” Sotomayor asked. “If you have a [city] charter that commands you to certify [that the test was fair], the charter says the board has to certify a test that is valid.”

Roberts: “Yes.”

Sotomayor: “So doesn’t that say that it has to make a finding that the test is invalid before it doesn’t use it? And if it is using race to make that determination, isn’t that illegal?”

Roberts said the city acted properly because its intent was to comply with Title VII and avoid a situation in which the city would promote whites but not a single black. “The city did the right thing here,” he said. “They did not certify based on a presumptively discriminatory exam when they heard credible information regarding alternatives.”

A controversial outcome

Two months after the oral argument in February 2008, the Second Circuit panel issued a unanimous, unsigned summary order. It upheld the federal judge’s “thorough, thoughtful, and well-reasoned” decision to throw the white firefighters’ case out. The order was a single paragraph – 135 words.

“We are not unsympathetic to the [firefighters’] expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated,” the order says in part. “But it simply does not follow that he has a viable Title VII claim. To the contrary, because the board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disparate racial impact, its actions were protected.”

The panel did not address – or even acknowledge – the Supreme Court’s June 2007 decision. Sotomayor referred to it during the oral argument, but there is no indication in the public record that the Second Circuit considered it in reaching its decision.

The brief order provoked an unusual request within the Second Circuit for the Ricci case to be reheard by all 13 active appeals-court judges. The judges voted 7 to 6 not to rehear the Ricci case.

Torre filed an appeal to the US Supreme Court. The case was heard on April 22.

Some legal analysts criticize Sotomayor for her role in the Ricci case. They say it deserved a full appellate examination and opinion.

Others defend the summary order as an efficient use of judicial resources. Seventy-five percent of cases end at the Second Circuit as summary orders, says Doug Kendall of the Constitutional Accountability Center.

He says Sotomayor’s posture in the Ricci case, upholding circuit precedents by upholding a district court’s decision, is not the work of a judicial activist. “A thorough review of Judge Sotomayor’s record reveals that she is the epitome of a small ‘c’ conservative judge,” he says. “She is very careful. She is a stickler for precedent and details.”

Michael Rosman has followed the Ricci case closely for years, filing friend-of-the-court briefs on behalf of the Center for Individual Rights. He says he was disappointed by the Second Circuit’s skimpy treatment of the issues.

If given a chance, Mr. Rosman says, he’d ask Sotomayor two questions. “Why did you think this could just be given the back of your hand when it was, in fact, a pretty important case?”

His second question: “What did the Supreme Court see that you didn’t?”

That answer may come soon. A high-court decision in the Ricci case is expected by the end of June.