Stuart Taylor may "admire many things about Judge Sonia Sotomayor," but his latest column raises concerns about the handling of Ricci v. DeStefano.
The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.
Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.
Judge Jose Cabranes, Sotomayor's onetime mentor, accurately described the implication of this logic in his dissent from a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel's ruling.
"Municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome -- i.e., failed to satisfy a racial quota," Cabranes wrote.
The Sotomayor-endorsed position allowed such a "race-based employment decision," Cabranes added, even though the New Haven exams were "carefully constructed to ensure race-neutrality" and even though the city had neither found nor tried to find a more job-related test.
The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the "disparate-impact" provisions of federal civil-rights law.
In fact, neither Sotomayor nor any other judge has ever found that the exams -- one for would-be fire lieutenants, one for would-be captains -- were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.
Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven's discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit -- regardless of whether they could win it.
In my prior posts, I've raised greater concerns about the procedural handling of the case than the substance, but the two are related. Insofar as a ruling for the city could establish an extreme precedent -- which is Taylor's argument -- the belated switch from an unpublished affirmance without precedential effect to a published per curiam affirmance that would establish binding circuit precedent without any explanatory opinion, is harder to justify. I don't know how much Judge Sotomayor can say about how the case was handled during her hearings, but she is sure to be questioned about it, particularly due to news reports suggesting why the case was handled this way.