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Washington

Supreme Court nominee Sonia Sotomayor is an aggressive and, at times, dominating force on the bench.

There is nothing halfway about her. As a judge, she is tough, relentless. She does not telegraph her leanings by going easy on one lawyer while being excessively hard-nosed on another. Instead, her courtroom demeanor is that of an equal-opportunity buzz saw.

Everyone in Judge Sotomayor’s courtroom eventually bleeds a little.

That is the picture that emerges from an audio recording of a Dec. 10, 2007, oral argument presided over by Sotomayor and two other federal appeals-court judges in a controversial reverse-discrimination case called Ricci v. DeStefano.

That same case is now pending before the US Supreme Court, with a decision – and possible reversal of Sotomayor – expected later this month.

The Ricci case also is emerging as a focal point of the investigation into Sotomayor’s temperament, legal acumen, and judicial philosophy. It will probably play a central role in Senate confirmation hearings, particularly if Republicans try to make Sotomayor’s nomination into a referendum on the use of racial preferences in government employment decisions.

Roots of a discrimination case

At issue in Ricci v. DeStefano is whether the city of New Haven, Conn., acted properly in 2004 when it refused to follow through on planned promotions in the fire department after it discovered that no African-Americans had scored high enough on a civil service test to qualify to become a lieutenant or a captain.

Frank Ricci and 17 other firefighters who scored well on the test complained that the city was discriminating against them because of the color of their skin.

The city defended its action by saying that to promote the white employees but no black firefighters would cause a racial disparity in government hiring. Such a disparity is presumed unlawful under Equal Employment Opportunity Commission regulations and Title VII of the Civil Rights Act. If carried out, the promotions would leave the city vulnerable to a discrimination lawsuit by black firefighters, New Haven officials said.

The white firefighters responded by filing their own discrimination lawsuit.

A federal judge in New Haven threw the suit out in 2006. The firefighters appealed to the Second US Circuit Court of Appeals in New York City and drew a three-judge panel that included Sotomayor.

In addition to being an employment dispute, the case is a hot-button ideological battleground pitting race-based antidiscrimination measures against colorblind merit-based hiring and promotion procedures.

The Second Circuit, which covers New York, Vermont, and Connecticut, has three longstanding legal precedents on the books supporting the city’s position in the Ricci case. But six months before the Second Circuit heard arguments in the case, the US Supreme Court decided a pair of public-school desegregation cases, announcing a new level of hostility toward government use of race-based methods to distribute burdens or benefits.

Justice Anthony Kennedy provided the deciding fifth vote. But rather than endorsing his conservative colleagues’ strict colorblind approach in every instance, Justice Kennedy left the door open for some race-conscious remedies while urging officials to be creative in exploring approaches that do not rely on race.

The Supreme Court action did not overturn the Second Circuit precedents cited in the Ricci case, but it weakened them and raised questions about their long-term viability.

Thus, the stage was set for potential constitutional fireworks in the New Haven firefighter case. How would the Second Circuit panel – and Sotomayor – reconcile the conflicting legal precedents?

Throughout the argument, Sotomayor was fully engaged in the case, testing theories and questioning assertions of fact in ways that strongly suggest extensive prehearing research and preparation.

At times during the hour-long hearing, Sotomayor swung into action, probing flimsy parts of a lawyer’s argument to lay bare weaknesses and inconsistencies. The firefighters’ lawyer, Karen Torre, wasn’t the only target. Sotomayor also ripped into the presentation of New Haven’s lawyer, Richard Roberts. Fifty-five minutes into the argument, it was impossible to predict how she might vote based solely on her questions and comments from the bench.

The royal ‘we’

There was one moment, however, when the judge may have tipped her hand when she used the royal “we” in response to a comment made by Ms. Torre.

The firefighters’ lawyer was urging the judges not to treat her clients as unskilled workers. “This is a command position in a first-responder agency,” she said, not garbage collectors. The safety of the firefighters and the community is at stake, the lawyer said.

Sotomayor interrupted Torre and made an uncharacteristic advocate-like statement. “Counsel, we are not suggesting unqualified people be hired – the city is not suggesting that, all right.”

It is unclear who the judge was referring to as “we.” But it is clear that it did not include the firefighters and their supporters.

The judge then explained her point: “If your test is going to always put a certain group at the bottom of the pass rate so they are never, ever, going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try … to develop that?”

The city’s professed concern about violating Title VII was merely pretext to cover up racial politics in New Haven, Torre told the court. The lawyer accused city officials of engaging in “race racketeering” by blocking the promotion of her clients to save the jobs for African-American “cronies” of a prominent leader in New Haven’s black community.

“The state is commanded, Judge Sotomayor, to not use the race of its citizens in a decision ever, unless it has the basis identified by the Supreme Court,” Torre said.

“But that is going too far, counsel,” Sotomayor replied, “because the law also says you can’t have a racially neutral policy that adversely affects minorities unless there is a business necessity.”

Torre said the civil service test involved a business necessity because its content was directly tied to job performance. She said the test was designed to identify the firefighters who best know what to do as officers in charge when they arrive at the scene of a fire or other disaster. “The law is clear on this…, and the Supreme Court jurisprudence is clear,” Torre said.

“What do you do with Justice Kennedy’s observation that there are creative ways to deal with racial diversity?” Sotomayor asked. “Targeting certain groups for more recruiting. Doing other things so that you can undo racial imbalance. Why is this any different?”

New Haven went to extraordinary lengths to create a fair exam for this particular promotion, Torre said. The city hired a consultant to specifically design the test to help minority candidates qualify for promotions, she said. The reading level was reduced to a fifth-grade literacy rate, and candidates were given a study guide and a three-month study period. The city recruited black and Hispanic fire chiefs from across the country to serve as test assessors. Assessment panels included a majority of African-American or Hispanic assessors, Torre said. Candidates were allowed to bring books and notes into the oral assessment part of the test. There were no time limits. Candidates were urged to take their time and jot down notes before answering, she said.

“What more can we do, Judge Sotomayor?” Torre asked.

New Haven’s turn for grilling

New Haven’s lawyer, Mr. Roberts, said the firefighters’ lawsuit had been properly dismissed because the white firefighters failed to prove the city engaged in unlawful discrimination. He said New Haven officials were merely seeking to comply with the letter and spirit of Title VII.

Roberts said that as long as the city’s civil service board had a “reasonable belief” that a new and different test might reduce the racial disparity of the existing test, it was justified in jettisoning the existing test results.

“At what point does reasonable belief hold up?” Sotomayor asked. “At a certain point there is a vested, an investment by the [firefighters] and by the city itself in this testing procedure. People are making enormous investments. Don’t they have to have some reasonable ground to say there is a question [about the fairness or validity of the test]?”

After the results of the test came back, the city and its civil service board relied on the testimony of a business competitor of the consultant who designed New Haven’s test. The competitor/expert offered an opinion that his test would be better. He did not conduct a detailed examination of the existing test, according to the case record.

“What is the city supposed to do?” Roberts asked. “Should we have certified [the exam results] based on a presumptively discriminatory test, sat back, and waited to be sued by the minorities?”

He added, “The city did exactly what Title VII strongly encourages – voluntary compliance.”

Roberts warned that if the appeals-court panel ruled against New Haven, “you are sending a signal to employers and municipalities: Don’t self-remediate, certify these exams, don’t even look into alternatives.”

Sotomayor took issue with the point. “I don’t know that that’s as far as your adversaries are proposing. What they are saying is you should remediate but you shouldn’t permit race to be the driving force on either end.”

She added: “It should be based on some objective standard. You look at the test and determine whether the test was in fact fair or not. And if you are going to say it was unfair, point to specific ways it was or wasn’t, and make sure there really is a fairer test.”

Roberts disputed Torre’s contention that the test was fair and job-related. “There’s never been a validation study,” he said.

(New Haven’s civil service process provides that, once the test is given, the results are submitted to a validation study to ensure that it was a fair exam. The white firefighters urged the city to conduct an objective validation study to determine if the test was fair or biased. City officials refused to allow a validation study. Instead, they relied on opinion testimony presented in a public hearing expressing doubts about the test and suggesting a better test could be designed.)

Roberts told the appeals-court panel that whether the test would pass muster in a validation study was not the issue.

“Why isn’t it the issue?” Sotomayor asked. “If you have a [city] charter that commands you to certify [that the test was fair], the charter says the board has to certify a test that is valid.”

Roberts: “Yes.”

Sotomayor: “So doesn’t that say that it has to make a finding that the test is invalid before it doesn’t use it? And if it is using race to make that determination, isn’t that illegal?”

Roberts said the city acted properly because its intent was to comply with Title VII and avoid a situation in which the city would promote whites but not a single black. “The city did the right thing here,” he said. “They did not certify based on a presumptively discriminatory exam when they heard credible information regarding alternatives.”

A controversial outcome

Two months after the oral argument in February 2008, the Second Circuit panel issued a unanimous, unsigned summary order. It upheld the federal judge’s “thorough, thoughtful, and well-reasoned” decision to throw the white firefighters’ case out. The order was a single paragraph – 135 words.

“We are not unsympathetic to the [firefighters’] expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated,” the order says in part. “But it simply does not follow that he has a viable Title VII claim. To the contrary, because the board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disparate racial impact, its actions were protected.”

The panel did not address – or even acknowledge – the Supreme Court’s June 2007 decision. Sotomayor referred to it during the oral argument, but there is no indication in the public record that the Second Circuit considered it in reaching its decision.

The brief order provoked an unusual request within the Second Circuit for the Ricci case to be reheard by all 13 active appeals-court judges. The judges voted 7 to 6 not to rehear the Ricci case.

Torre filed an appeal to the US Supreme Court. The case was heard on April 22.

Some legal analysts criticize Sotomayor for her role in the Ricci case. They say it deserved a full appellate examination and opinion.

Others defend the summary order as an efficient use of judicial resources. Seventy-five percent of cases end at the Second Circuit as summary orders, says Doug Kendall of the Constitutional Accountability Center.

He says Sotomayor’s posture in the Ricci case, upholding circuit precedents by upholding a district court’s decision, is not the work of a judicial activist. “A thorough review of Judge Sotomayor’s record reveals that she is the epitome of a small ‘c’ conservative judge,” he says. “She is very careful. She is a stickler for precedent and details.”

Michael Rosman has followed the Ricci case closely for years, filing friend-of-the-court briefs on behalf of the Center for Individual Rights. He says he was disappointed by the Second Circuit’s skimpy treatment of the issues.

If given a chance, Mr. Rosman says, he’d ask Sotomayor two questions. “Why did you think this could just be given the back of your hand when it was, in fact, a pretty important case?”

His second question: “What did the Supreme Court see that you didn’t?”

That answer may come soon. A high-court decision in the Ricci case is expected by the end of June.

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