Supreme Court overturns Sotomayor decision in Ricci firefighter case ... will it matter for SCOTUS ?

well, it should, as it shows

The White House and its allies are already spinning "it doesn't matter"; "she's in the mainstream" and "Souter dissented, and she's replacing him". All of which are pathetically poor arguments.

Ricci and Sotomayor [Peter Kirsanow]

The Supreme Court in Ricci held that before an employer can engage in intentional racial discrimination (i.e., throwing out the results of the promotional exam in which the highest scorers were white) for the claimed purpose of avoiding or remedying an unintentional disparate impact, it must have a strong basis in evidence to believe it will be subject to disparate-impact liability (not just sued) if it fails to take the race-conscious discriminatory action.

Since Sotomayor and her colleagues summarily dispensed with the white firefighters' arguments, the Supreme Court's opinion provides senators with a host of questions for Sotomayor during the confirmation hearings, starting with whether the nominee even considered arguments pertaining to the promotional exam's job-relatedness.

Given that the Second Circuit affirmed summary judgment for New Haven in relatively cursory fashion, the Supreme Court's Ricci decision is a significant rebuke to how Sotomayor and her colleagues dispensed with the case.


http://voices.washingtonpost.com/supreme-court/2009/06/ricci_decision_provides_rallyi.html?hpid=topnews


Ricci Decision Provides Rallying Point for Opposition

By Jerry Markon and Michael D. Shear

Conservatives are jumping all over today’s Supreme Court decision that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, using it to attack high court nominee Sonia Sotomayor’s earlier ruling against them.

But White House officials are fighting back, and they spent the morning reaching out to Senate Judiciary Committee members to make their case that the ruling should have little bearing on Sotomayor's nomination.

"The issue from the Sotomayor perspective is, does this call into question anything about her judgment? And it doesn't," said one senior White House official. "The majority made it clear they are making a new rule. No one has really questioned that she did what she was supposed to do.’’

The court overturned an earlier order that Sotomayor had endorsed as an appellate court judge, that upheld New Haven’s decision to throw out a promotion test it had given the firefighters when no African Americans and two Hispanics qualified for advancement. The 134-word order has been the flash point of much of the legal debate over Sotomayor’s nomination.

While it is unclear what affect, if any, today's decision will have on Sotomayor's ascension to the high court, Sen. Charles Schumer (D-N.Y.), a senior Judiciary Committee member, said the ruling "in no way undercut" her prospect for confirmation. The committee will begin confirmation hearings July 13.

In a conference call with liberal legal scholars, Schumer argued that Sotomayor and her colleagues on the U.S. Court of Appeals for the 2nd Circuit had followed four decades of labor law precedent. "The 2nd Circuit's opinion was clearly in the mainstream,'' Schumer said. [Bull !]

At a minimum, however, the decision provides an unwelcome distraction from what had seemed like a relatively smooth confirmation process for Sotomayor, and it opened up a renewed line of assault for conservatives.

They wasted no time today in using the decision to paint Sotomayor as a liberal judicial activist.

“The Supreme Court decision repudiating Judge Sotomayor’s legal position in this discrimination case raises important questions about Judge Sotomayor’s judicial philosophy,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. He encouraged senators to explore “the nominee’s views on judicial activism” and her views of the Constitution at the confirmation hearings.

Wendy E. Long, counsel to the conservative Judicial Confirmation Network, issued a statement saying that the firefighters “who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas.’’

Casting the decision as a repudiation of Sotomayor, Long added: "Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

White House officials had put in place a plan to deal with the ruling, which they clearly expected. One of their planned talking points was to point out that retiring Justice David H. Souter, whose slot Sotomayor would take, joined the dissent in backing her ruling.

"I think its going to be hard for people to explain why this really should be a confirmation issue for her," the senior White House official said. [Really, now ??]

Washington Post staff writer Paul Kane contributed to this item.