Sonia Sotomayor

It's hard for me to watch the Sotomayor confirmation hearings, not only because of the Senators' generally unfocused, rambling questions. Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.

I am aware of and share the priority of getting Sonia Sotomayor seated on the Supreme Court. But there is a big gap of possibility between safely doing that and the surrender we're watching.

The senators of both parties and Judge Sotomayor often seem to be in a debate over who has the most passive vision of judging. Listening to them, one might think judges don't make decisions at all but simply write down legally required results, and have no apparent need for judgment or experience.

During the second day of the Sonia Sotomayor confirmation hearings, a telling exchange occurred between the Judge and the Senate Judiciary Committee. The exchange concerned the recently decided employment discrimination case of Ricci v. DeStefano (U.S. June 29, 2009). As some readers of this blog undoubtedly know, the case established a new test for deciding when a municipality could lawfully throw out the results of a job promotion exam because of its disparate impact on a Title VII-protected group of individuals.

In a closely divided 5-4 opinion, which the usual suspects aligned on either side of the ledger, the Court held that the adverse impact of the test results in a New Haven firefighter promotion test that amounted to a prima facie case of disparate impact discrimination against black employees was not a defense to a disparate treatment case brought by white employees because the employer did not have a "strong basis in evidence" to believe that it would be liable for disparate impact discrimination. The majority came to this conclusion by importing into Title VII a color-blind standard from constitutional equal protection cases like Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion).

As Judge Sotomayor pointed out, the state of Title VII employment discrimination law at the time her Second Circuit Court of Appeals panel heard the case did not embrace the Supreme Court's eventual chosen test. Indeed, the law in this area of disparate impact cases was sufficiently established that the Second Circuit panel was able to enter a per curiam decision affirming the factually-oriented, district court decision.

Of course, the Republican Senators on the Judiciary Committee, including Senators Sessions and Hatch, sought to portray Judge Sotomayor as an activist for joining the panel's decision in this case and attacked her on that basis. Nothing, however, could be further from the truth. In fact, whereas Judge Sotomayor followed established precedent in this area of the law, there is a much better argument that it was the Supreme Court, which relied on case precedent from non-Title VII case law to come to its surprising conclusion, that had engaged in judicial activism to reach a desired outcome in favor of the white firefighters challenging the city's decision to throw out the initial exam test scores.

As my colleague Professor Michael Zimmer has ably demonstrated, Justice Kennedy, the author of the majority opinion in Ricci "takes an enormous leap from the first conclusion - that the City acted because it knew the ‘statistical disparity based on race'-to his second - that it rejected the test ‘solely because the higher scoring candidates were white . . . . [I]t [now] appears that an employer's conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law."