Since President Obama announced the Supreme Court nomination of Judge Sonia Sotomayor last week, the oxygen feeding the cable networks, talk radio and the blogosphere has been the accusation that Sotomayor is a racist and a reverse discriminator.
Some of that is based on a single line in a speech — a line that Sotomayor has already taken back. And some is based on her judicial record.
As a judge, Sotomayor has ruled in 100 cases that involve questions of racial discrimination of one sort or another. Tom Goldstein, Supreme Court advocate and founder of the leading Supreme Court blog, has read all of those decisions. He says that Sotomayor does not seem to put her thumb on the scale and has in fact, most of the time, ruled against those charging discrimination.
In only 1 of out 8 cases, he says, has she favored in some sense claims of discrimination.
"The fact that she so rarely upholds discrimination claims I think answers the idea that she is always angling for minorities," he says.
Sotomayor has not been reversed by the Supreme Court in any of her race cases, but that is likely to change in the next few weeks when the high court issues a decision in what is widely viewed as her most controversial ruling.
It involves the city of New Haven, Conn.'s new promotion exam, which resulted in no African-Americans scoring high enough to be promoted. The city's lawyers warned that the test results were a red flag that made New Haven liable to losing a lawsuit from black firefighters. So the city discarded the exam and the results.
Instead, the city was sued by a group of white firefighters who charged reverse racial discrimination.
A federal district court judge held a fact-finding hearing and, in a 48-page opinion, said the city was discriminating against no one because all of the test results were discarded and nobody was promoted. Sotomayor was on a three-judge panel that reviewed that decision. In a six-sentence unsigned order, the panel said that because the test appeared to violate a provision of federal law that treats such racially disproportionate test results with grave suspicion, the city was within its rights to take the steps necessary to avoid liability.
Judge Jose Cabranes, who was not on the panel, sought unsuccessfully to have the full appeals court review the matter, contending that the decision could lead to quotas. His opinion was a red alert to the U.S. Supreme Court, which decided to review the case and heard arguments last month. At oral argument, questions posed by the justices suggested strongly that the ruling would be reversed.
Abigail Thernstrom, a conservative legal scholar, is critical not so much of the decision by Sotomayor and her fellow panel members but of the way serious legal issues were simply not addressed.
"I would not have cared if she came down on one side or the other on those very serious questions, but instead she dismissed their importance," she says.
Goldstein, the Supreme Court advocate, also says he is mystified as to why the Sotomayor three-judge panel kissed off in one paragraph a case in which the law points in two contradictory directions.
"It's a puzzle why they didn't take it more seriously," he says. "My best bet, because I presume good faith, is that the panel decided that the trial judge who had heard the evidence and who had grappled with the hard question had done as good of a job as you could and all they were saying was we agree with the trial judge and it wasn't necessary for them to write anything else."
There are no other such racially incendiary cases that Sotomayor has ruled on one way or the other. And if the New Haven case is a harbinger in one direction, there are other cases that point the other way too. Sotomayor, for example, dissented when her colleagues allowed the New York City Police Department to fire one of its officers for sending hate mail on his own time. While the hate mail was patently offensive, hateful and insulting, Sotomayor wrote, it did not interfere with the operations of the police department, and, she observed, under our Constitution, even a white bigot has the right to speak his mind.
In another case involving a black couple bumped from an American Airlines international flight, Sotomayor said their race discrimination claim was clearly trumped by an international treaty governing airline rules. It matters not, she said, that her ruling might mean airlines could discriminate on a wholesale basis and that there would be no legal recourse. The treaty's language is clear and it is not for the courts to make policy, she said, adding that if policy is to be changed, Congress or federal agencies must do it.