Emily Bazelon writes in Slate:
Judge Sonia Sotomayor is smart and sharp, and her formidable track record on the bench should put to rest any lingering doubts that she isn't. (Speaking of which: Why was the left, or at least the center, criticizing one of its own?) But there is a mystery in Sotomayor's recent history: a brief, unsigned opinion in the difficult race case now before the Supreme Court, Ricci v. DeStefano. Sotomayor punted when Ricci came before her, to such a degree that she raised more questions than she answered.
Ricci is a hard case with bad facts–a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws.
Actually, Ricci is a easy race case with simple facts — a representative example of how Title VII routinely works. It's only a hard case if your goal is to somehow, someway, preserve the dominant "disparate impact" concept.
In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force–there were seven for captain and eight for lieutenant–primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.
Something that hasn't been mentioned is that the the liberal complaints about the 2003 test stem from innumeracy about the effects of a small sample size. In the 1999 New Haven firefighter's promotion exam, which didn't cause major protests by the black minister who is the white mayor of New Haven's chief vote-gatherer in the black community, the racial gap in average scores was the same as on the 2003 test. However, in 1999, two blacks scored far enough out toward the right edge of the distribution that they were promoted. In 2003, however, although the average distribution of scores by race was the same, there didn't happen to be any blacks who scored particularly highly relative to the black average. The difference in whether 2 blacks passed in 1999 or 0 in 2003 is just a matter of small sample sizes.
The politicians didn't raise a stink in 1999, but did in 2003, because their statistical sophistication is at the black and white level.
In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact–it affects one racial group more than others–must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes. ...
First, the promotional exam wasn't "solely" written. Forty percent of the score was based on oral exam. And the city had attempted to rig the oral results by stacking the panels of out-of-state senior firefighters brought in to judge the oral results by putting two minorities to one white on almost every three man scoring panel.
However, the city's collective bargaining contract with the fireman's union mandated a 60% weighting for the written test? Why? Well, one reason is that the firemen wanted to be evaluated partly objectively. They didn't trust the politicians to be objective in whom they favored to give them orders in life or death situations, so they wanted at least a majority of the score on the promotional exam to be unbiased by racial prejudice.
The district court judge who heard Ricci's case ruled against him and his fellow plaintiffs. They appealed to the 2nd Circuit, the court on which Judge Sotomayor sits. In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis. As Judge Jose Cabranes put it, in protesting this ruling later in the appeals process, "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."
If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed. The court heard argument in Ricci in April. New Haven didn't fare well.
The high court's decision in the case will come in June, before Sotomayor's confirmation hearings. The problem for her will not be why she sided with New Haven over Frank Ricci. The four liberal-moderate justices currently on the court are likely to agree with her, in the name of preserving Title VII as a tool for fair hiring. There's even an outside chance that Justice Anthony Kennedy will follow along. The problem for Sotomayor, instead, is why she didn't grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?
Well, Ms. Bazelon, I think you may find that you just answered your own question! Judge Sotomayor no doubt shares your goals on policy (preserve Disparate Impact) but is much more aware of the facts. If trying to hush up the Ricci case was the best she could come up with, then that's the best anybody on the left could come up with.
Very similarly, the Obama Administration doesn't want to make Ricci the Waterloo of Disparate Impact. The case is both so representative and so well prepared in details (e.g., notice choosing Ricci over his fellow plaintiffs as the lead plaintiff — you know how the left loves to dig up personal scandal on sympathetic-sounding conservatives these days, so I suspect the firemen's lawyers carefully chose a guy with the few skeletons in the closet), that they would be happy if Anthony Kennedy just tersely sent it back to district court for retrial on the facts. (Years later, Frank Ricci would probably get his promotion, but the system would continue.) What Obama is terrified of is the Supreme Court using Ricci as a precedent-setting case.
Hence, Sotomayor's attempt to bury the case is exactly in line with the Obama Administration's desires. Which is hardly surprising, since they nominated her for the Supreme Court.