During the May 31 edition of the NBC-syndicated Chris Matthews Show, host Chris Matthews asked whether the Senate Judiciary Committee can “smoothly go along” and “put[]” Supreme Court nominee Sonia Sotomayor “on the court” if the Supreme Court reverses her position in the 2nd Circuit Court of Appeals case Ricci v. DeStefano. New York Times writer Helene Cooper responded that if the Supreme Court reverses the Ricci decision, Sotomayor is “gonna look as if she got it wrong.” However, neither Matthews, Cooper, nor any other panelist noted evidence that, even if a majority of justices on the Court -- which is dominated by conservatives -- voted to reverse, at least some members of the Court, in their questioning at oral argument, laid out the case for upholding the 2nd Circuit. Specifically, Justice David Souter, whom Sotomayor would replace, noted what he said was the “damned if you do, damned if you don't” position faced by the city of New Haven, Connecticut, and proposed an outcome consistent with the 2nd Circuit's decision.

As Media Matters for America has documented, in addition to the comments above, during oral argument, Souter also asked the lawyer representing 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?” Moreover, according to a May 31 Washington Post article, “The lawyer who argued at the Supreme Court last month on behalf of the white firefighters ... found a receptive audience in the court's conservative justices but not among the liberals, including the justice Sotomayor would replace, David H. Souter, who is retiring.”

The 2nd Circuit ruled that precedent in interpreting Title VII's employment discrimination prohibitions compelled the decision in the Ricci case. The city of New Haven has argued that it was, in the words of SCOTUSblog contributor and H&R partner Kevin Russell, “simply trying to avoid a violation of Title VII's disparate impact provision.”

From the May 31 edition of the NBC-syndicated Chris Matthews Show:

COOPER: I think this is the one -- the sort of Achilles heel for this nomination. I mean, I think her silence, I mean, her not saying that much in her opinion and just letting that court case stand without explaining or wading into the constitutional issues that are raised by it. I think those are gonna hurt.

MARK WHITAKER (NBC News Washington bureau chief): But it also means there is no paper trail that she has to either defend or repudiate, and she's gonna have to address it, but she can really do that from scratch.

MATTHEWS: OK. Mark and Helene, what happens if the U.S. Supreme Court reverses her decision at the appellate level and say, “No, this was an unfair case where there was some reverse discrimination against these white firefighters? You're wrong.” Can the Senate Judiciary Committee then smoothly go along and say, yeah, but we're putting you on the court having your decision reversed? This could well happen this time.

WHITAKER: Well, first of all, I think it's hard to have a huge debate about a case that's already decided by the Supreme Court. But again, I think, she's gonna have a chance to explain herself, and the fact that she didn't write an opinion in overturning -- or upholding the district court ruling means that it would just depend on how she does before the Senate in the confirmation hearing.

COOPER: But this puts her on the defensive. Because, if the Supreme Court does overturn her decision, as so many people think that they will, she's gonna look as if she got it wrong -- and that's gonna be sitting there, right there --

[crosstalk]

WHITAKER: Well, but she was a part of a three-judge panel that upheld it without saying why they did.

MATTHEWS: Well, let's get to the bigger question, and you get to get this first. People say she's gruff. There's all kinds of interesting terms. We're gonna know more about her personality when she goes up against the Republicans on that committee. OK, let's say she's gruff, OK? Is this on purpose, they want a strong, ramrod kind of personality on the liberal side of the court to take on the intellectual [Justice Antonin] Scalia?