In a May 27 editorial, The Washington Times wrote of the 2nd Circuit decision joined by Judge Sonia Sotomayor in the New Haven firefighters case: “The Supreme Court is expected to rule on Ricci v. DeStefano before the Senate votes on Judge Sotomayor's nomination. It would be an extraordinary rebuke were a current nominee to be overruled on such a controversial case by the very justices she is slated to join.” But whether or not a majority of the court votes to reverse Ricci, at least one justice, David Souter -- whom Sotomayor would replace -- made comments in oral argument that were supportive of the position taken by the 2nd Circuit in the case. Moreover, it is not unprecedented for a Supreme Court nominee to have been rebuked for an appellate court opinion. Indeed, Justice Samuel Alito received a “rebuke” as an appeals court judge, by Justice Sandra Day O'Connor, whom he replaced. Nor would it be unprecedented for a justice to have a ruling he or she reached as an appellate court judge subsequently reversed.

As Media Matters for America has noted, during the Supreme Court's April 22 oral argument in the case, 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?”

In his book The Nine: Inside the Secret World of the Supreme Court (Doubleday, 2007), New Yorker staff writer and CNN legal analyst Jeffrey Toobin wrote that in 1992, Justice Sandra Day O'Connor had “excoriated” the “logic, approach, and conclusions” of her eventual successor, then-3rd Circuit Court of Appeals judge Alito, in her opinion for the abortion-rights case Planned Parenthood v. Casey.

In his 3rd Circuit opinion concurring in part and dissenting in part, Alito had argued that Pennsylvania's spousal notification law was constitutional “because it is 'rationally related' to a 'legitimate' state interest” and does not pose an “undue burden.” Joining Justices Anthony Kennedy and Souter in a plural opinion, O'Connor affirmed the 3rd Circuit's finding that the spousal notification law was unconstitutional, finding the statute “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family.”

Moreover, it also would not be unprecedented for the court to reverse a ruling reached by a justice before their elevation to the Supreme Court. Then-appeals court judge John Roberts was a member of a three-judge panel of the District of Columbia Circuit Court, which, in its July 2005 unanimous ruling on Hamdan v. Rumsfeld, overruled a district court's holding that Salim Ahmed Hamdan, a Yemini national, “could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoner.” The panel found that “the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court” and that “the 1949 Convention does not apply to al Qaeda and its members.”

Roberts was elevated to chief justice of the United States several months later, in September 2005. Then, in 2006, the Supreme Court reversed the circuit court's decision on a 5-3 ruling. In reversing the ruling, Justice John Paul Stevens wrote in the majority opinion that the circuit court's ruling with regard to whether Hamdan had a right to enforce the provisions of the 1949 Geneva Conventions was based upon a footnote which “does not control this case” and stated that the panel's “reasoning” with regard to whether members of the Conventions applied to members of Al Qaeda was “erroneous.” The court further found that “the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions.” Roberts recused himself from participation in the Supreme Court's ruling.

From the Times editorial:

Judge Sotomayor seems to favor racial discrimination. Consider the case of Ricci v. DeStefano. In that controversial case, 19 white firemen were denied promotion because no blacks scored high enough on a race-neutral test to also be promoted. Judge Sotomayor ruled against the white firefighters.

If Mr. Obama wanted a judge with the right “empathy,” he struck out with Judge Sotomayor. One of the white firefighters denied promotion, Frank Ricci, is dyslexic. In order to ace the promotion exam, he quit a second job, spent $1,000 for instruction materials, and spent many hours reading those books into an audio tape to help him study. For his extraordinary efforts, he finished sixth out of 77 applicants for promotion -- but then was denied, simply because he is white.

Second Circuit Court of Appeals Judge Jose Cabranes, appointed by a Democratic president, complained that the ruling written by Judge Sotomayor and two other judges “contains no reference whatsoever to the constitutional claims at the core of this case.”

The Supreme Court is expected to rule on Ricci v. DeStefano before the Senate votes on Judge Sotomayor's nomination. It would be an extraordinary rebuke were a current nominee to be overruled on such a controversial case by the very justices she is slated to join.

Judge Sotomayor seems to be the most radical person ever nominated for the high court. To continue to command public respect, the Senate will have to ask her some hard questions. The simplest one to ask will be the hardest one for her to answer: Given her statements against whites and males, can she be fair to all Americans?