Will Race Discrimination Ruling Burn Sonia Sotomayor?

May 28, 2009— -- It wasn't a traditional discrimination case, and now conservatives are citing Sonia Sotomayor's ruling in the case in their pushback against the Supreme Court nominee.

"Every day I go to work, I gotta pin this lieutenant's badge on me, it reminds me I got screwed out of a captain's badge because of the color of my skin," said Matt Marcarelli, a 15-year veteran of the New Haven, Conn., fire department.

Marcarelli got the top score on a promotions exam. He was first in line for captain. But not everyone did so well.

In fact, not one of the 28 black candidates, in a field of 118, scored high enough to be promoted. For New Haven, that was a problem.

"It looked like the exam might have been discriminatory against some of the minority test takers. And that was certainly a red flag for the city under the law," said Victor Bolden, an attorney for the city of New Haven.

New Haven officials and some of the city's black firefighters argue that written tests are not the best tests to use and that less discriminatory alternatives -- such as oral exams -- are available.

"Written tests aren't the best way to judge a person on how they will perform at their job," said black firefighter Gary Tinney.

New Haven city officials knew they were headed for a catch 22 when the test results came back.

The city decided to throw out the test results, fearing a lawsuit by the black firefighters. They got one anyway -- from the white and Hispanic firefighters, who said New Haven's decision discriminated against them.

The firefighters lost in court. They appealed, and that's how this case got to Sotomayor, who is currently a federal appeals judge.

What has all of Washington talking is what happened next: Sotomayor and two fellow appellate judges dismissed the white firefighters' claims -- and 2,000 pages of court papers and filings -- in a one-paragraph ruling.

"We are not unsympathetic to the plaintiffs' expression of frustration," but the firefighters who filed the case don't have a "viable" claim under the law, the opinion said.

Conservatives Criticize Judge Sotomayor's Ruling

Conservatives, like Wendy Long of the Judicial Confirmation Network, have decried the ruling.

"Judge Sotomayor and her colleagues didn't engage in any legal analysis. They didn't grapple with these issues," Long charged.

"It leads one to think that Judge Sotomayor and her two colleagues who were involved in the case simply wanted to bury the claims of the New Haven firefighters."

On the next appeal to the full 13-member court, the judges were more conflicted. Six sharply objected to the short, unsigned opinion, saying it failed to examine any of the law.

"The opinion contains no reference whatsoever to the constitutional claims at the core of this case," wrote Judge Jose Cabranes, a Clinton appointee and long-time mentor to Sotomayor, in a scathing dissent. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

Sotomayor's supporters defended the one-paragraph opinion, saying the law was clear and that, procedurally, the appellate panel had done nothing wrong with its summary order. In a conference call organized by the White House, several said brief orders are not unusual in those circumstances.

"Judge Sotomayor expressed real sympathy for the plaintiff and noted how hard he had worked on this, but said that they were essentially bound by previous decisions in the area," said William Marshall, a professor at the University of North Carolina School of Law. "I think it's important to recognize that her instincts in the case were one of restraint."

Hispanic firefighter Ben Vargas, a member of the group that sued the city, said civil rights laws should be used to protect his potential promotion.

"The civil rights laws, they have nothing in there which state preferential treatment. The civil rights laws are there for everybody; all American citizens have the same exact rights," he said.

The Supreme Court agreed to consider the case, and in arguments last month, the justices indicated they might rule against the city and give the white and Hispanic firefighters another chance.

Black firefighters say that the stakes in their case couldn't be higher.

"If we lose this," New Haven firefighter Octavius Dawson said, "the implication is catastrophic. I mean, where does it end? Not just with the fire department. Police department, education, who knows where it could end?"

But aggrieved firefighters say they simply want to take race out of the equation and be treated the same across the board.

"The fire isn't going to discriminate against a person whether he's black, white or Hispanic," Vargas said. "It's going to treat that person the same way."

The Supreme Court is expected to hand down its decision before Sotomayor's Senate confirmation hearings begin.