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Will Gender, National Origin Make a Difference in Sotomayor’s Jurisprudence? – Part 1

by James M. Sconzo and James C. Goodfellow

Sonia Sotomayor’s nomination to the U.S. Supreme Court has triggered a classic clash of left versus right. Those speculating on how Judge Sotomayor might rule on key constitutional issues have characterized her as everything from a level-headed jurist who applies the law to the facts of the cases before her, to a dangerous left-leaning liberal.

Some of the criticism of Sotomayor has been fueled by extra-judicial comments that she made in 2005 at Duke University or in 2001 at U.C. Berkeley. Wading past the rhetoric, does Judge Sotomayor’s judicial record in the Court of Appeals for the Second Circuit, (which covers New York, Connecticut, and Vermont) offer guidance on how she may treat employers appearing before our highest court?

Recently, writing in The New Yorker, Jeffrey Toobin, author of The Nine; Inside the Secret World of the Supreme Court, evaluated the tenure of Chief Justice John Roberts. Toobin observed that “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with . . . corporate defendant over the individual plaintiff.”

Liberals who opposed Roberts’ nomination, predicted his conservative record. Yet, Justice David Souter appears to be an example of a nominee who failed to deliver the conservative jurisprudence for which George H. W. Bush and conservatives had hoped.

Critics wonder if a Justice Sotomayor will be the polar opposite to Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas. While history has shown that a justice’s jurisprudence can change over the course of his tenure — Chief Justice William Rehnquist famously upheld the Miranda decision after regularly and roundly criticizing the decision when he was an associate justice — a review of Judge Sotomayor’s judicial record may prove to be an accurate indicator of how she will rule on matters relating to employment law.

The New Haven, Connecticut firefighters case
A labor and employment case, Ricci v. DeStefano, is likely to be front and center during Judge Sotomayor’s confirmation hearings. In 2003, 118 New Haven, Connecticut, firefighters took promotional examinations. The tests were purportedly designed to ensure race-neutrality. Of the test-takers, 59 earned passing scores. Because of limited vacancies, only 19 firefighters were eligible for promotion. Of the 19, 17 were white and 2 were Hispanic. None of the 27 African-American test-takers with passing scores were eligible for promotion.

U.S. Supreme Court overturns Second Circuit decision in Ricci case

Fearing that African-American firefighters might claim discrimination, New Haven did not certify the exam scores and the 19 eligible firefighters were denied promotion. Led by Frank Ricci, the white firefighters sued the New Haven, claiming race discrimination. Ironically, the city’s desire to avoid race discrimination lawsuits led to a race discrimination lawsuit by the white firefighters who were denied promotion.

The district court concluded that the city did not commit unlawful race discrimination when it failed to certify the test results. A three-judge panel of the Second Circuit Court of Appeals, in a one-paragraph unpublished per curiam decision, affirmed the district court’s decision. Judge Sotomayor was on the panel that decided the case. Curiously, the decision to issue a per curiam opinion is usually reserved for cases in which there are no significant legal questions for the panel to resolve.

The firefighters then requested the Second Circuit to rehear the case en banc, with all the judges on the Second Circuit court, not just a three-judge panel. The judges voted 7-6 to deny the request, thus allowing the per curiam opinion to stand. In a widely publicized dissent, Judge Jose Cabranes, a Clinton appointee, argued that the firefighters’ case raised important questions of first impression in the nation regarding the application of the equal protection clause and Title VII of the Civil Rights Act of 1964.

Judge Cabranes noted that the typical qualification examination case centers on the exam, as well as on the administration of the exam. This case, according to Judge Cabranes, centered on the decision — based solely on race — to decertify the test results, a decision that was made after the administration of a legitimate test. While Judge Cabranes did not discuss the merits of the case, he charged that the panel had shirked its duty by failing to thoroughly address these important questions. Indeed, he observed: “the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.” He also urged the U.S. Supreme Court to hear the case.

The Supreme Court has heard the case and issued its decision on June 29. During their questions and comments at oral argument , the Court’s conservative bloc — Justices Scalia, Thomas, Alito, and Roberts (who has shown a particular disdain for any government decision-making based on race) — appeared to agree with the firefighters, whereas the liberal bloc — Justices Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer — appeared to agree with New Haven. Justice Anthony Kennedy seemed to be leaning toward the firefighters. In its 5-4 decision, justices Kennedy, Scalia, Thomas, Alito, and Roberts ruled in favor of the firefighters.

Judge Sotomayor’s critics charge that her participation in the Ricci case, particularly the decision to issue a per curiam opinion, is indicative of the fact that she fits within the liberal mainstream. One of her colleagues from the Second Circuit views Judge Sotomayor’s role in Ricci much differently.

In an interview with the Connecticut Law Tribune, former Yale Law School dean, and current judge on the Second Circuit, Guido Calabresi offered that: “[Judge Sotomayor] was not the presiding judge on the [Ricci] case. It’s a panel, and . . . that panel [tried] to decide the particular case before it, without resolving a very, very hard question of law. And . . . that is the opposite of an activist judge.” No matter how the case is spun, Ricci should figure prominently in the confirmation proceedings.

Preview of next week’s article
Next week, the editors of the Connecticut Employment Law Letter will look at Judge Sotomayor’s decisions in other employment law cases she has heard.