In a May 29 article titled, "Sotomayor's Focus on Race Issues May Be Hurdle," The New York Times reported that "[i]n one of the few cases dealing with" affirmative action that Supreme Court nominee Judge Sonia Sotomayor “helped decide on the federal appeals court, Ricci v. New Haven, she ruled in favor of the city's 's [sic] decision to discard the results of an exam to select firefighters for promotion because too few minority firefighters scored high enough to advance.” The article went on to uncritically quote the assertion by Gary Marx, executive director of the conservative Judicial Confirmation Network, that Sotomayor's “nomination and the Ricci case have brought racial quotas back as a national issue.” The article did not note, however, that the 2nd Circuit Court of Appeals ruled, in an opinion written by one of Sotomayor's colleagues and joined by Sotomayor and three other judges, that precedent in interpreting Title VII's employment discrimination prohibitions compelled the decision in the Ricci case.

The city of New Haven, Connecticut, has argued that it was not implementing “racial quotas,” but rather 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.” In addition to the 2nd Circuit ruling, Supreme Court Justice David Souter -- whom Sotomayor would replace -- made comments during oral argument in which he identified what he said was a “damned if you do, damned if you don't situation” faced by the city of New Haven in its efforts to comply with Title VII's prohibitions on employment discrimination.

As Media Matters for America documented, a May 28 Times article similarly uncritically quoted Committee for Justice executive director Curt Levey's claim that Sotomayor “had a very specific agenda” in the Ricci case without providing these facts which undermine that claim.

From the May 29 Times article:

As a lawyer, she joined the National Council of La Raza and the board of the Puerto Rican Legal Defense Fund, two Hispanic civil rights groups that advocate for vigorous affirmative action. As a judge, she has repeatedly argued for diversity on the bench by alluding to the insights she gleaned from her Latina background.

In one of the few cases dealing with the subject that she helped decide on the federal appeals court, Ricci v. New Haven, she ruled in favor of the city's 's decision to discard the results of an exam to select firefighters for promotion because too few minority firefighters scored high enough to advance. White firefighters who had scored well on the discarded test sued, and the Supreme Court heard arguments on the case in April.

“Her nomination and the Ricci case have brought racial quotas back as a national issue,” said Mr. Marx of the Judicial Confirmation Network.

The public response, however, is hard to foresee. Few groups conducted public polls on the issue as it faded in recent years, and the results from those that did reveal a consistent ambivalence, said Michael Dimock, a pollster with the nonpartisan Pew Research Center.

When asked a question about “affirmative action or preferential treatment for minorities,” the public has consistently opposed the idea by a margin of two to one. But when asked about “affirmative action programs designed to help women and minorities,” an even bigger majority has supported them.