On the May 26 edition of Fox News' Special Report, legal correspondent Shannon Bream echoed a conservative talking point by falsely suggesting that Supreme Court nominee and 2nd Circuit Court of Appeals Judge Sonia Sotomayor's position in the New Haven firefighters case, Ricci v. DeStefano, indicates that she is outside the mainstream of the current court. Bream asserted that during April 22 oral arguments before the Supreme Court, “It appeared ... that many of the Supreme Court justices were sympathetic to the white firefighters' claims.” In fact, despite Bream's assertion that “many” justices “were sympathetic to the white firefighters' claims,” at the oral argument in the case, Supreme Court Justice David Souter -- whom Sotomayor would replace -- made comments that were supportive of the position taken by the 2nd Circuit in the case.

Moreover, an April 22 NPR report said of the oral arguments: “The justices seemed closely divided, with the decisive fifth vote likely in the hands of Justice Anthony Kennedy.”

During oral arguments, Souter asked the 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?” From the oral arguments:

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 the May 26 edition of Fox News' Special Report with Bret Baier:

BRET BAIER (host): Correspondent Shannon Bream reports on Sotomayor's involvement in a controversial issue now before the Supreme Court.

[begin video clip]

BREAM: It is a case that drew national attention when it was argued at the Supreme Court in April.

White firefighters from New Haven, Connecticut, who scored top marks on promotions exams, were denied a chance to move up because the city was worried about the fact that no minority candidates, save one Hispanic, tested well enough to be promoted.

The top scorers included this man, Frank Ricci, a dyslexic firefighter who spent months and invested thousands in tutoring to make sure he would pass.

RICCI: The only thing I'll say at this time is that we're -- I think can speak for all of us -- that we're all happy to have our day in court.

BREAM: But Judge Sonia Sotomayor never wanted the case to get to the court where she's now hoping to take a seat.

When the firefighters' case came before her on appeal to the 2nd Circuit, she and two other judges summarily dismissed it without tackling the complex legal issues outlined in stacks of briefs and debated in extended oral arguments.

The court issued an unsigned, one-paragraph opinion noting Ricci's special circumstances, but stated there was no reverse discrimination, quote, “It simply does not follow that he has a viable Title VII claim.”

Her colleague, Judge Jose Cabranes, seen on the far right, appointed by President Clinton and considered a liberal, was so concerned that he wrote a lengthy dissent, highlighting what many saw as an attempt to bury the case.

Cabranes wrote, quote, “This court has failed to grapple with the issues of exceptional importance raised in this appeal.”

ILYA SHAPIRO (Cato Institute senior fellow): Regardless of what you think of the merits of the claims, the way they handled it was just a failure of judicial decision-making.

[end video clip]

BREAM: It appeared at the oral arguments for the Ricci case a month ago that many of the Supreme Court justices were sympathetic to the white firefighters' claims.

The man who's often the swing vote, Justice Anthony Kennedy, went so far as to say that when it came down to breaking the test-takers into different categories on the basis of race, quote, “I have a problem with that.”

And although the White House says it's not worried, it may be Judge Sotomayor who has a PR problem if the justices release an opinion reversing her at the very same time that she is working to be confirmed on Capitol Hill -- Bret.

BAIER: Which could be likely. Shannon, thanks.