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."

If the critics of Judge Sotomayor are truly concerned about judicial activism, they have nothing to fear from Sonia Sotomayor who steadfastly applied binding precedent at the time from her circuit and the Supreme Court to come to her decision in the case. She also pointed out during her confirmation testimony that if she were a circuit judge in a similar case post-Ricci, she would follow the new "strong basis in evidence" test.

These Republican Senators would do better to turn their attention to the Supreme Court decision in Ricci and ask whether the majority's decision in that case was not in fact an example of conservative judicial activism. Another way of viewing this question is to ask whether there was any way that Judge Sotomayor, or her fellow Second Circuit panelists, could have predicted that the Supreme Court would have come to this legal outcome. Because the answer is clearly "no" based on the pre-Ricci tenets of employment discrimination law, the only explanation is that activism existed, but at the level of the United State Supreme Court.