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Discrimination ruling shapes Sotomayor debate

Eds: ADDS background about charges that Sotomayor’s panel buried the opinion. Moving on general news and financial services.

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Associated Press Writer

WASHINGTON (AP) — The Supreme Court’s reversal Monday of a racial discrimination decision endorsed by Sonia Sotomayor as a federal appeals judge provided fresh ammunition for her critics two weeks before her Senate confirmation hearing, but it’s unlikely to sink her nomination.

The ruling that white New Haven firefighters were unfairly denied promotions because of their race became an instant talking point for conservative foes of Sotomayor. They argued that her court’s decision to the contrary last year shows she would be an activist who allows her biases — particularly her backing of affirmative action policies — to taint her judgment.

Still, the 5-4 decision, which was not unexpected on a court whose conservative majority has recently moved to narrow measures meant to combat racial discrimination, is hardly a clear-cut rebuke to Sotomayor.

Sotomayor’s supporters noted that the appeals court decision followed well-established legal precedents — something conservatives routinely say judges should do. They also pointed out that she did not actually write the appeals court decision but was rather one member of a three-judge panel that rejected the white firefighters’ claim of discrimination.

More than anything else, the Supreme Court’s decision in the case of Ricci v. DeStefano pointed up the dueling ideological strains that will shape Sotomayor’s confirmation process. Conservatives who cheered it as a blow for evenhanded application of anti-discrimination laws said it deepened their questions about Sotomayor’s ability to keep her personal opinions and background out of her decisions.

"This case will only raise more questions in the minds of the American people concerning Judge Sotomayor’s commitment to treat each individual fairly and not as a member of a group," said Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee.

Democrats countered that the decision should in fact end questions about whether Sotomayor is an "activist judge."


Sotomayor and her panel "did what judges are supposed to do, they followed precedent," said Sen. Patrick Leahy, D-Vt., the Judiciary Committee’s chairman. He called that overturned appeals court decision an example of "judicial restraint."

At issue in the case was New Haven’s decision to throw out a promotion exam for firefighters because virtually no minorities scored highly enough to qualify. The Supreme Court ruled that the city’s fear of a racial discrimination lawsuit by minority firefighters wasn’t by itself enough to allow it to discriminate against the white candidates who scored well enough to get promotions.

But Justice Ruth Bader Ginsburg, joined in her dissent by Justice David Souter — whom Sotomayor would replace if confirmed — said civil rights laws were never meant to prevent employers from trying to avoid discriminating against minorities. They said no firefighters were entitled to a promotion, nor were minority firefighters given preferential treatment.

Conservatives pounced on the decision to amplify their case against Sotomayor, who they have criticized harshly for saying she hoped a "wise Latina" would usually reach better conclusions than a white male without similar experiences.

"It’s just one more data point that she thinks it’s OK to make decisions as a judge based on your own personal preferences, gender, race, background, political agenda — instead of being a servant of the law," said Wendy Long of the Judicial Confirmation Network.

Tom Fitton of the conservative group Judicial Watch said the case "puts senators in a corner, where they’re going to have to say whether they will vote for someone who thought it was appropriate to discriminate based on race simply to avoid a lawsuit."

The Senate Republicans’ campaign arm put Democrats on notice Monday that it will try to box them in politically on the issue. The National Republican Senatorial Committee distributed a news release accusing first-term Sen. Michael Bennet of Colorado of rushing to endorse Sotomayor before learning all the facts about her. "Did you read this Sotomayor opinion, Sen. Bennet?" the headlined blared.

Critics also faulted Sotomayor for dispensing of the case in a short, pro forma opinion that did not discuss the merits or the precedents of the case — a move they argued was calculated to bury the decision and dodge the controversial issues it raised.


"Her panel wanted to avoid scrutiny ... and they were called on it," Fitton said.

Sotomayor’s allies said the panel ruling, known as a "per curiam" opinion, was typical of cases where there were clear precedents to guide the court.

"It’s a political red herring ... designed to derail or at least impact her nomination," said Dustin McDaniel, the Arkansas attorney general who sided with New Haven in the case.

Democrats seemed unconcerned about the potential fallout.

"There’s little political significance to whatever the court decided today in terms of Judge Sotomayor, except to render ... a fairly definitive opinion that she follows judicial precedent and that she doesn’t legislate from the bench," said While House spokesman Robert Gibbs.

He called the high court’s decision "interesting" and a "new interpretation" of federal anti-discrimination law, although he stopped short of condemning it.

A chorus of civil rights groups who back Sotomayor went much further, denouncing the ruling as a blow against a key element of civil rights statutes that would make it more difficult for employers to ensure that their standards don’t put women and minorities at a disadvantage in landing jobs.

"With the restrictions today and the new standard enunciated today, it’s going to make it harder for employers to continue addressing discrimination in the workplace," said Marge Baker of People for the American Way.

Sotomayor, Baker said, "was following the law. What happened today was the court changed the law."

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