Media uncritically repeat claim that New Haven firefighters case shows Sotomayor is an activist

In the wake of Sonia Sotomayor's nomination as a Supreme Court justice, media have echoed conservatives' claim that her position in the New Haven firefighters case, Ricci v. DeStefano, shows that she is an "activist" judge. For example, Keith Perine wrote in a May 26 Congressional Quarterly Today article that Judicial Confirmation Network counsel Wendy Long said Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." Perine then reported that Long "pointed to Sotomayor's participation in a 2nd Circuit discrimination case, Ricci v. DeStefano, in which a group of white New Haven, Conn., firefighters alleged they were unfairly denied promotions." In fact, Sotomayor agreed with four of her 2nd U.S. Circuit Court of Appeals colleagues that precedent compelled the decision in the case. Moreover, contrary to Long's suggestion that Sotomayor's decision shows that she is "far more of a liberal activist than even the current liberal activist Supreme Court," Justice David Souter -- whom Sotomayor would replace -- made comments during oral argument that were supportive of the position taken by the 2nd Circuit in the case, asking counsel for the firefighters: "Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again? ... [I]sn't that the only way to avoid the damned if you do, damned if you don't situation?"

As Perine noted, "Sotomayor joined an opinion by a three-judge 2nd Circuit panel that rejected the firefighters' lawsuit. The Supreme Court now is weighing the case." But contrary to conservatives' claims that the panel decision shows that Sotomayor is an "activist," she joined a fellow circuit judge's opinion citing 2nd Circuit precedent it said was controlling authority. In that opinion, Judge Barrington Parker wrote (accessed from the Lexis database, emphases added):

At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions--among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm'n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates--and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test--the City's response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent's citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989), are therefore inapposite. See Hayden, 180 F.3d at 49 (distinguishing those cases as "concerned with select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts.").

Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 ("It is settled that voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination." (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 ("A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates.").

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Moreover, I hardly think that in order to decline to certify the exam results, the City was required to prove, through a validation study or some other means, that its own tests were not "job related for the position in question and consistent with business necessity," 42 U.S.C. § 2000e-2(k)(1)(A)(i) (defining affirmative defense to prima facie case of disparate impact violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226 (disagreeing with the assertion that "before adopting remedial measures" the employer must "prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable through job-related explanations").

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The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court's reasoning in its per curiam opinion. Nothing more is required.

Moreover, Sotomayor's decision in the case does not place her out of the mainstream established by the current liberal Supreme Court justices. In fact, at the April 22 oral argument in the case, Souter asked questions of the firefighters' counsel that reflected understanding of the situation faced by the city of New Haven:

JUSTICE SOUTER: The problem, Mr. Coleman, is that -- that the cases you are relying on, it seems to me, are cases in which ultimately what is being judged is a different result in the -- at the end point of the process which was starting. And the problem that I have with -- with using cases like that and -- and essentially the problem I -- I have with your argument is that it leaves a -- a municipality or a governmental body like New Haven in a -- in a damned if you do, damned if you don't situation. Because on -- on the very assumptions that you are making, if they go forward with -- with their -- their hiring plan, they certify the results and go forward with it, they are inevitably facing a disparate impact lawsuit.

If they stop and say, wait a minute, we're starting down the road toward a disparate impact lawsuit and, indeed, there may be something wrong here, they are inevitably facing a disparate treatment suit. And whatever Congress wanted to attain, it couldn't have wanted to attain that kind of a situation.

Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again? And I -- I recognize there's got to be a good faith condition, and the -- the good faith can always be attacked. But isn't that the only way to avoid the damned if you do, damned if you don't situation?

MR. COLEMAN: No, I completely disagree with that, Justice Souter. It not simply a matter of good faith. The use of race in government is so -- the Court has been so -

JUSTICE SOUTER: But you make no distinction between race as an animating discriminating object on the one hand and race consciousness on the other. There is no way to deal with a situation like this any more than there is a way to deal with -- with setting lines in voting districts --

MR. COLEMAN: I also --

JUSTICE SOUTER: -- without pervasive race consciousness. That is not unconstitutional, and it seems to me that you are not observing that distinction in -- in your reply.

From Perine's May 26 Congressional Quarterly Today article:

Conservative activists wasted little time in assailing Sotomayor's record.

Wendy E. Long, counsel to the Judicial Confirmation Network, said Sotomayor "has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court."

Long pointed to Sotomayor's participation in a 2nd Circuit discrimination case, Ricci v. DeStefano, in which a group of white New Haven, Conn., firefighters alleged they were unfairly denied promotions. Sotomayor joined an opinion by a three-judge 2nd Circuit panel that rejected the firefighters' lawsuit. The Supreme Court now is weighing the case.

Charmaine Yoest, the president of Americans United for Life, said Sotomayor is a "radical pick that divides America."