Firefighter ruling dials up heat on Sotomayor

The Supreme Court on Monday reversed a decision that she had made as part of a three-judge panel. The case centered on issues of race and discrimination.

Jessica Hill/AP
Frank Ricci (l.) lead plaintiff in the the 'New Haven 20' firefighter reverse discrimination case speaks to the media outside of Federal Court in New Haven, Conn., Monday. The Supreme Court ruled in a 5-4 decision that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race.

Supreme Court nominee Sonia Sotomayor's Senate confirmation hearings start in two weeks, but she faced a crucible of a different sort Monday.

On the last day of the US Supreme Court's current term, the justices released an opinion in the New Haven firefighter reverse-discrimination case, overturning the ruling of a three-judge panel that included Judge Sotomayor.

That's not the sequence of events President Obama hoped for when he nominated Sotomayor to replace retiring Justice David Souter.

Sotomayor had upheld a federal judge's decision to throw out the firefighters' case. On Monday, the high court ruled 5 to 4 in the firefighters' favor.

Analysts pored over the 93 pages of opinions by the majority, by concurring justices, and by dissenting justices Monday for anything that might be used in support of or against Sotomayor at her July 13 hearings.

They found no smoking gun. Part of it may be because the three-judge panel that included Sotomayor offered only a brief unsigned summary order disposing of the firefighters' case.

An anonymous paragraph-long opinion does not offer much opportunity for critical scrutiny of one member of a three-judge panel.

Yet the stark difference between the appeals court's one-paragraph ruling and the 93 pages of analysis produced by four different justices Monday will likely trigger questions during Sotomayor's confirmation hearings.

The most-discussed portion of the high court's opinion relates to Footnote 10 of Justice Ruth Bader Ginsburg's dissent. In it, she suggests that even the four dissenting justices had some level of disagreement with the lower courts' actions. She said that under certain circumstances, the case might have been sent back to the lower courts for further consideration.

Conservatives pointed to Footnote 10 as proof that all nine members of the court disagreed at some level with Sotomayor's approach to the New Haven case. Some analysts say it suggests Sotomayor is out of sync with the high court on issues involving race and ethnicity.

"It certainly gives the Judiciary Committee a lot to ask her," says Roger Clegg of the Center for Equal Opportunity. "The fact that this is a case about racial politics and racial discrimination and preferential treatment on the basis of race also makes very relevant her extrajudicial speeches and writing in this area," he says.

Liberals pointed to Justice Ginsburg's dissenting opinion as evidence that Sotomayor's views fall comfortably within the spectrum of the high court's liberal wing. Some analysts predict her voting record will mirror that of Justice Souter.

"The fact that the court's four more liberal members would affirm the Second Circuit [appeals court] shows that Judge Sotomayor's views were far from outlandish," wrote Supreme Court advocate Thomas Goldstein on his website SCOTUSBLOG.

Senate Republican Leader Mitch McConnell drew a different lesson from the high court's reversal of the Sotomayor panel.

"Not only did Judge Sotomayor misapply the law, but the perfunctory way in which she and her panel dismissed the firefighters' meritorious claims of unfair treatment is particularly troubling," he said in a statement. "It stands in marked contrast to the way the Supreme Court addressed this very serious matter, underscoring my concern that she may have allowed her personal or political agenda to cloud her judgment and affect her ruling."

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