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Saturday, June 13, 2009

Ricci Is a Hard Case

One of the concerns about Obama's nominee for the Supreme Court, Sonia Sotomayor, is her willingness to sign off on a circuit court of appeals decision to affirm a district court's decision in Ricci v. DeStefano, more commonly known as the "New Haven Firefighters Case." The district court decision is here, and the two-page statement Sotomayor signed off on is here.

The case regards a set of qualifying exams for promoting firefighters in New Haven Connecticut. In one round of exams, the results were such that only whites, and a very small number of hispanic exam takers became eligible for promotion, while none of the African American candidates scored high enough to be considered for promotion. (The rules stated that only the highest scorers qualified for promotion. Therefore, if one passed but did not have one of the highest scores, they were not considered eligible for promotion. The deal was that for each of the positions available, the three highest exam scorers were eligible to be considered.) The City of New Haven, seeing the racially disproportionate results, refused to certify the exams.

As a result of the city's refusal to certify the test results, the eligible whites (and, I believe, the two hispanics) sued the city for discrimination. The District Court upheld the city's actions. At this point, the plaintiffs appealed to the 2d circuit, which Sotomayor sits on, and the three-judge panel affirmed the lower court's decision. The plaintiffs then appealed to the US Supreme Court, and the Court agreed to hear the case. I believe the Court's decision is still pending.

This case has caused grave concern for some conservative opponents of the Sotomayor nomination. While I have not followed their concerns extensively it seems that they boil down to the following points:

1. The city allegedly engaged in "reverse discrimination" and the federal courts upheld the this action of "reverse discrimination." Sotomayor presumably agreed with the court's decision to uphold the city's action. Therefore, it is possible that as a Supreme Court justice, she would uphold other instances of reverse discrimination.

2. The court of appeals issued its decision as a "per curiam" decision, which, as I understand it, precludes it from being established precedent in future cases. Yet, the per curiam decision was published, meaning that it might be so used. (I'm on shaky ground here, as I'm not sure I fully understand this point, and I might be using the terms incorrectly.)

3. There were, allegedly, some problematic backroom maneuvres in the original district court finding.

4. There were, allegedly, some backroom maneuvres to get the third jude in the circuit court panel to sign off on the affirmation of the district court's decision. This appears to suggest that Sotomayor might be more supportive of the city's action than the per curiam report suggests.

5. One of the reasons the city refused to certify the test results--and a reason that the city appears to have admitted--was the desire to gain the approval of the Mayor's African American constituency. Those who are concerned about the decision suggest that this is judicial affirmation of race-baiting politics and they pose the argument by analogy that similar decisions by elected officials to appease white constituencies would not be tolerated by the federal courts.

After reading, or at least skimming, the district court decision, and not knowing anything about the backroom dealing, I've come to the conclusion that the Ricci case is, by itself, too complicated to devine Sotomayor's approach to affirmative action or issues of reverse discrimination. At least as the district court's decision put it, the city was concerned about, among other things, being sued under federal civil rights law if it certified the results.

If the district court's opinion (which is all I'm going on...I haven't looked closely at what went on in judges' chambers) is to be believed, the city had at least a good faith reason to believe that the exams might have been racially biased. In other words, there is some evidence that the city could have a reasonable belief that the exam was not purely merit-based in its execution. I find some of the reasoning to support this belief quite suspect and maybe even pretextual (in the everyday meaning, not legal meaning, of the word), but the reasoning is not wholly arbitrary. For example. a lot of weight was put on oral exams, and some "experts" the city consulted claimed that the oral in-person interviews might have influenced the city goers.

There is a lot that is unclear here. For one thing, it seems to me that had the city certified the test results, it might have plausibly done so to appease white constituents, and I, for one, am not sure that the decision to certify would have necessarily been actionable in the federal courts. For another, it is unclear whether the City was merely using the testimony it used as an after the fact pretext to justify a politically--and potentially legally--problematic result. This decision brings up issues to federal-state relations as much as it does issues of discrimination and so-called reverse-discrimination.

It's my conclusion that, given the ambiguities, this case, taken alone and absent any other damning evidence, should not lead to disputing the confirmation of Sonia Sotomayor for the Supreme Court.