Even before Sonia Sotomayor was nominated by President Obama to the seat to be vacated by Justice Souter on the Supreme Court, I had read that her opinion in a reverse-discrimination case brought by largely white firefighters in New Haven might cause her problems.  So I read the opinions in the case, and what I found surprised me in a couple of ways.

One thing that surprised me was that Judge Sotomayor did not write any of the opinions in the case. She was simply one of three judges of the Second Circuit who decided to affirm the decision of the District Court (the trial court) without writing a new opinion. (More on this below.)

The other surprise was that the trial court opinion was largely unsurprising and unremarkable, and appeared to follow the statutes, regulations, Supreme Court precedents, and Second Circuit precedents quite carefully. In fact, the opinion of the trial judge, and the affirmation by the Second Circuit, should be viewed as an example of judicial restraint, and not any kind of "judicial activism." Is that how the Obama administration intends to present the case to the Senate?

Background

According to the opinion of the trial judge, the city of New Haven, Connecticut, decided to create a new examination for promoting firefighters and hired an outside consultant to design the examination. The consultant created both a written exam and an oral exam and, under the city's contract with the firefighter's union, the written exam counted as 60% of the final score for each applicant and the oral exam counted as 40%, and a score of 70% would be a passing grade.

The results of the exams apparently surprised the city. Forty-one applicants took the exam for promotion to Captain and 25 of the applicants were white, 8 were black, and 3 were Hispanic. Twenty-two of the applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. But under the rules under which the city operated, it would be allowed to promote only those among the top 9 scorers, and of those top scorers there were 7 whites, 2 Hispanics, and no blacks.

The results of the exam for Lieutenant were similar. Seventy-seven applicants took the exam and 43 were white, 19 were black, and 15 were Hispanic. Thirty-four passed, of whom 25 were white, 6 were black, and 3 were Hispanic. But the city would be making promotions from the top 10 scorers, all of whom were white.

The city's Civil Service Board (CSB) held five public hearings on whether to certify the results of the examinations. The CSB made public the racial impact of the test results (although not the names of those who had passed or failed) and allowed firefighters to express their opinions about whether the results should be certified, and whether they thought that the tests were fair. The CSB also took testimony about how the examinations were prepared and heard opinions (some of them rather speculative) from a variety of different sources about why blacks and Hispanics had not performed as well on the tests as whites had performed. (The trial judge's opinion devotes about 12 pages to summarizing the testimony before the CSB.) Ultimately, the CSB split evenly, two votes to two votes, on the issue of whether to certify the results of the examinations, which meant that the results were not certified. Several white (and Hispanic) firefighters then sued several city officials for racial discrimination in violation of federal law, resulting in Ricci v. DeStafeno, Docket No. 3:04cv1109 in the U.S. District Court for Connnecticut.

Opinion of the Trial Judge

The District Court judge found that the essential facts were largely undisputed, and granted the defendants' motion for summary judgment, finding that the plaintiff firefighters were not entitled to any relief as a matter of law.

It was undisputed that the test results showed a "racially adverse impact" under standards established by the regulations of the Equal Employment Opportunity Commission, which means that, if the city had certified the results, the minorities adversely affected by the test would have had a valid "prima facie" case against the city for racial discrimination. The plaintiffs conceded that the test results showed a racially disparate impact, but argued that the city could have successfully defended the test results through a "validation study" performed in accordance with EEOC regulations. But the court held (and here's where some of the judicial restraint appears up) that the statutes and regulations did not require the city to perform a validation study.

In the usual race discrimination case, the plaintiff-employee shows that an employment test has an adverse effect on racial minorities and then the defendant-employer tries to justify the test. The trial judge recognized that this case reversed those roles because the defendant-employer was showing that the employment test had a racial impact and the plaintiffs-employees were arguing that the test should be used anyway. The trial judge therefore had to apply the statutes and regulations to a dispute that the authors of the statutes and regulations had not expected.

The trial court cited (and quoted) several Second Circuit opinions for the proposition that the city had the right to try to improve racial diversity in race-neutral ways. For example, in a 1999 decision involving different exams in a different city and state, the Second Circuit had declared that "nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation."

So the ultimate issue in the case was whether an employer should be required to use a test that has a racial impact even though it is not known why the test has a racial impact and the test might accurately measure employment qualifications in a race-neutral way. The trial judge could not find any statute, regulation, or previous court opinion that required that result, and was unwilling to create such a new requirement, and so ruled against the plaintiffs. (More of that judicial restraint.)

Second Circuit Affirms

The Second Circuit Court of Appeals has twelve active judges and ten "senior judges," but cases on appeal are assigned to a panel of three judges to hear and decide the appeal. Judge Sotomayor was one of the three judges assigned to the appeal by the firefighters, and after reading the briefs and hearing oral argument, all three judges agreed to affirm the decision "for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below."

The three judges added that they were "not unsympathetic expression of frustration," but added that the plaintiffs simply did not have a valid claim under the relevant statute. In other words, the judges were not claiming that the result was fair, but only that they believed that the law required them to rule against the plaintiffs.

Conclusions

So will Judge Sotomayor's role in this case help or hurt her prospects for confirmation?

Conservatives may try to use the case to support their claim that she is racist and may accuse her of voting against the appeal of the white plaintiffs simply because they are white and not because of the law.

Her supporters can justifiably point to the decision as an example of her judicial restraint, not activism, because the decision did not create new law or new remedies and the judges refrained from ordering the city of New Haven to do something it didn't want to do.

In his campaign for President and in his administration to date, Obama has shown that he plans ahead and tries to anticipate possible problems before they arise. The Ricci case was cited as a possible problem for Judge Sotomayor even before she was nominated, so it seems likely that the Obama administration already has a plan for how to address the case. It will be interesting to see what that plan is and whether it works.