Sonia's Sad Song

The New York Latina judge's road gets a little bumpier

By Robert A. George
|  Wednesday, Jul 1, 2009  |  Updated 12:58 AM PDT
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Obama's Supreme Choice: Sonia Sotomayor

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Sonia Sotomayor's nomination process just got a little rockier.

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President Obama had hoped to have his Supreme Court nominee Sonia Sotomayor confirmed by the time the high court's new term begins in October. 

He may as well forget about that now. 

The time bomb that had been silently ticking under the confirmation process blew up on Monday. That Ricci, et al., v. DeStefano, et al. -- involving 20 New Haven firefighters (19 white, one Hispanic) denied promotion after the city threw out a test because no African-Americans passed it -- was going to be controversial was no surprise. That the court was most likely to rule against the Second Circuit panel, of which Sotomayor was a member, was also no surprise: The questions during the arguments telegraphed which way the justices were leaning. Finally, that Republicans were planning on using the decision against Sotomayor during the hearings was also a no-brainer.  

What is something of a surprise is how problematic the confirmation process looks to become for the judge -- based on the language used by the court in its opinions. And the dissenting opinion, in its fashion, may be more problematic for Sotomayor than the majority one.  That's because in the 5-4 decision, the judges in the dissent ended up agreeing with the lower court, but disagreed with the Second Circuit's (unsigned) reason for rejecting the firefighters claim:   

The dissenters [Ruth Bader Ginsburg, Steven Breyer, David Souter and John Paul Stevens] would uphold the discarding of results from a test with a disparate impact where "the employer has good cause to believe the device would not withstand examination for business necessity." Depending on how this standards were applied, it could perhaps be sufficient to avoid a de facto quota system, and Justice Ginsburg made a point of claiming (albeit not very persuasively) that her standard would, in fact, avoid that result.

In any event, even the dissent's more lenient standard is a departure from that endorsed by Judge Sotomayor. As Justice Ginsburg wrote in footnote 10, "the lower courts focused on respondents' 'intent' rather than on whether respondents in fact had good cause to act." In other words, Judge Sotomayor refused to demand even that New Haven have "good cause" (never mind a strong basis in the evidence) to believe that it was vulnerable to a meritorious suit for disparate impact discrimination, before depriving the white firefighters of promotions they would have received had they been black. 

Supporters of Sotomayor can argue -- quite accurately -- that her conclusion ultimately was little different than that reached by Souter, the man she seeks to replace on the court.  Legally, that is the case. However, nomination processes don't stick within the letter of legal decisions. Rather, they are political situations, where the rules are anything but cut and dried. 

As a result, Republicans were already looking for ways to stretch out the process. Now they have something concrete with which to go after Sotomayor (and, implicitly, the president).  Aside from arguing that the judge was wrong in the basic decision, they can look at the dissent and say that her's didn't even measure up to their breadth of analysis. 

Democrats have enough numbers to get Sotomayor confirmed, but the process will undoubtedly be tougher -- and more drawn out -- than the administration had hoped. 

New York writer Robert A. George blogs at Ragged Thots. Follow him on Twitter.  

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