While I wait for my copy of Ricci to finish printing, here are some quick thoughts on how this decision could influence the Sotomayor nomination.
First, the bottom line: This decision is very unlikely to have a significant effect on the outcome. I find it (almost) inconceivable that she will not be confirmed. A 5-4 reversal, even on a contentious, high-profile issue, will not change that.
The 5-4 nature of the Court’s decision reinforces the argument that Sotomayor is a mainstream liberal nominee. The Court split along predictable, ideological lines. Her decision was supported by the Court’s four liberals, including the Justice she was tapped to replace, so the case does not suggest that she is a radical or outside of the legal mainstream. Rather, it confirms what we’ve presumed: She’s a liberal judge who is likely to agree with the Court’s liberal justices in most closely divided cases in which the justices split along ideological lines.
On the other hand, the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel’s handling of the case, and may raise questions about her judgment. Initially, the panel upon which Sotomayor sat was ready to dispose of the case with an unpublished, unsigned summary order. Whatever the reasons for this (and we’ve seen some speculation), it’s difficult to argue that this case was a simple no brainer of the sort that would justify that sort of resolution — and it’s difficult to square the justifications for this disposition with the panel’s subsequent decision to affirm the district court with a one paragraph, precedential opinion. The length of the Supreme Court’s opinions (a 34-page majority, 39-page dissent, and two concurrences) is evidence that the case raised difficult and weighty issues. It reinforces the position of Judge Sotomayor’s colleagues who criticized the panel’s initial disposition and, on their own initiative (and without the filing of a petition for rehearing en banc), sought full court review of the case. Yet even if her handling of this case reflects poorly on her judgment, I do not see it as disqualifying, and I do not believe it will prevent her from being confirmed.