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Bias Case Looms Large for Nominee
Ruling on Firefighters' Lawsuit Raises Questions About Sotomayor's Philosophy

By Robert Barnes and Eli Saslow
Washington Post Staff Writers
Sunday, May 31, 2009

Judge Sonia Sotomayor has heard thousands of cases and has issued as many rulings in her nearly two decades on the federal bench, but the early debate over her judicial philosophy in her Supreme Court confirmation battle comes down to one paragraph.

It is the 134-word summary order in Ricci v. DeStefano, which upheld the decision of New Haven, Conn., to throw out the promotion test it had given city firefighters when no African Americans and two Hispanics qualified for advancement.

The case is under review by the Supreme Court that Sotomayor would join. If the decision is reversed -- which, from the tone of oral arguments in April, seems a distinct possibility -- the high court's ruling will probably come at the end of June, just as the Senate and the nation begin to consider Sotomayor's qualifications.

The White House, concerned that a reversal would be seen as an embarrassment for its nomination, is rolling out a multi-pronged strategy to explain the case and Sotomayor's role in it. The first step was to offer a collection of legal experts who say the ruling marks Sotomayor not as a judicial activist, or even a supporter of minority rights, but as a conservative jurist whose actions show how closely she hews to court precedent.

But White House strategists face a tough challenge in the sound-bite war. The New Haven case raises complex issues about workplace bias and how far governments may go to ensure they are not discriminating against minorities before they intrude upon the rights of those in the majority.

The white firefighters who brought the suit say it can be reduced to this: They were denied the promotions they earned because of the color of their skin.

Moreover, the scant order by a unanimous three-judge panel that included Sotomayor was devoid of legal reasoning for affirming the decision of a lower district judge, a curious dismissal for a case that represents significant questions of law and the Constitution.

Although most of Sotomayor's colleagues on the full U.S. Court of Appeals for the 2nd Circuit agreed with the approach, it was roundly criticized by her mentor, Judge José A. Cabranes, who was also appointed to the circuit by President Bill Clinton. Cabranes wrote on behalf of the Republican-appointed judges in denouncing the cursory nature of the review and in urging the Supreme Court to review the case.

"The opinion contains no reference whatsoever to the constitutional claims at the core of this case," Cabranes wrote. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

In New Haven, tensions between white and minority firefighters are the real-life consequences of the suit, and Sotomayor's nomination has ratcheted up the attention.

Gary Tinney, president of the local chapter of the International Association of Black Professional Fire Fighters, said relations are not good in the department, where no one of any race has been promoted since the test was given in 2003.

"The feeling in there is just total isolation," Tinney said. "You have to watch your back."

The white firefighters -- known as the New Haven 20 -- have been instructed by their lawyer not to talk to newspaper reporters.

Tinney said firefighters have discussed how Sotomayor's appointment will bring added notice, but they generally avoid conversations about the suit. "It's not like anybody's going to change sides," he said.

The New Haven 20 set up a Web site to sell stickers and T-shirts to help pay legal fees. Meanwhile, local associations for black and Hispanic firefighters hold news conferences to explain their case.

"People do their jobs, but it's day-to-day," said Ron Morales, a fireman in nearby Bridgeport and the president of the International Association of Hispanic Firefighters. "This is always on our minds. There's a constant tension there."

The lawyer who argued at the Supreme Court last month on behalf of the white firefighters, Gregory S. Coleman, told the justices that such "regrettable and socially destructive racial politics" are the result of government policies based on racial classifications.

He found a receptive audience in the court's conservative justices but not among the liberals, including the justice Sotomayor would replace, David H. Souter, who is retiring.

Souter said New Haven found itself in a "damned if you do, damned if you don't situation," facing lawsuits from minorities if it used the test results and from whites if it put them aside.

He wondered why it was not more reasonable to allow the city "an opportunity, assuming good faith, to start again."

Souter's comments are key to the White House's plan, should a reversal come, to portray Sotomayor as fitting exactly the seat that is opening.

"Nothing would change," said a senior White House official, who spoke on the condition of anonymity to discuss strategy. "In fact, the reasonableness of her position would be established by the fact that a justice appointed by a Republican president . . . saw this the same way. How five conservative justices vote on the case isn't really the issue."

In the commentary after Sotomayor's nomination last week, some have mischaracterized the case and inflated the nominee's role. It does not involve racial quotas or even a municipal policy of affirmative action, nor does it involve preferences in hiring.

All who took the tests for promotion to lieutenant and captain already worked as firefighters for the city, so it is not a question of hiring less-qualified workers to meet diversity goals.

But the promotion results produced a heated debate in the city, and government lawyers warned the independent civil service board that if it certified the test results, minority firefighters might have a good case for claiming discrimination under Title VII of the Civil Rights Act of 1964. Federal guidelines presume discrimination when a test has such a disparate impact on minorities.

The board split 2 to 2, which meant the exam was not certified. Those who opposed using the results said they worried the test must be flawed in some way that disadvantaged minorities. (The test questions have not been made public.)

The white firefighters filed suit, saying their rights had been violated under both the law and the Constitution's protections of due process.

District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, even if it could not explain its flaws.

The case then went to the 2nd Circuit, where Sotomayor and judges Robert Sack and Rosemary S. Pooler heard the appeal. Oral arguments lasted an hour, with Sotomayor leading the questioning, as is her reputation. But instead of issuing a detailed and signed opinion, the panel said in a brief summary that, while it was "not unsympathetic" to the plight of the white firefighters, it unanimously affirmed the lower court's decision for "reasons stated in the thorough, thoughtful, and well-reasoned opinion."

"I was not surprised; I was stunned" by the limited nature of the ruling, said the firefighters' lawyer, Karen Torre. She has called the case "the most significant race case to come before the circuit court in 20 years."

The legal experts assembled by the White House last week reacted sharply to questions about whether the panel was trying to bury a controversial decision. "The notion that you're going to try and hide an opinion is pretty much nonsense," said Martha Minow, acting dean of the Harvard Law School and a friend of Sotomayor's since both were at Yale Law School. "It's just a quick opinion saying that 'we are bound, and we're not going to do anything further than what they did in the particular case.' "

A reversal by the Supreme Court would come at a bad time for Sotomayor but would not likely have a lasting effect -- "one news cycle," the White House official said hopefully. Conservative and liberal court experts agree that reversal rates say little about a judge's qualifications.

Sotomayor has had six cases reviewed by the Supreme Court, half of them reversed. "Aggregate reversal rates tell you nothing," said Temple University law professor David A. Hoffman, who notes the court customarily reverses three-quarters of the cases it decides to review. "The way to judge a judge is to read the opinions."

Former chief justice Warren E. Burger had three cases reversed the year he joined the court, according to the 1979 book "The Brethren." The reversal rate of the court's newest member, Justice Samuel A. Alito Jr., was also an issue in his nomination.

Kevin Russell, who also argues before the court and was one of the lawyers brought out by the White House, said it seems obvious that the Supreme Court's decision in Ricci will be a close one.

"People are going to be looking to the Supreme Court's decision in this case of Judge Sotomayor's work, fairly or not," he said. "How the court writes the opinion is going to affect the public reception."