RENEE MONTAGNE, host:
Ever since President Obama announced the Supreme Court nomination of Judge Sonia Sotomayor last week, the oxygen feeding the talk on cable TV, talk radio and the blogosphere is the accusation that she practices a kind of reverse discrimination.
Here's former Congressman and Republican presidential candidate Tom Tancredo on MSNBC's "The Ed Show."
(Soundbite of TV show, "The Ed Show")
Mr. TOM TANCREDO (Former Republican Representative, Colorado): I'm telling you, she appears to be a racist. She said things that are racist. In any other context, that's exactly how we would portray it, and there's no one that would get on the Supreme Court saying a thing like that except for a Hispanic woman. And you're going to say it doesn't matter. Well, man, where are you coming from? How can possibly say that?
MONTAGNE: The accusations of racism are mostly based on a single line in a speech. Some of it is also based on her judicial record. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: As a judge, Sotomayor has ruled in a hundred cases that involve questions of racial discrimination of one sort or another. Supreme Court advocate Tom Goldstein, 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.
Mr. TOM GOLDSTEIN (Supreme Court Advocate): Only in about one out of every eight cases does she favor, in some sense, claims of discrimination. The fact that she so rarely upholds discrimination claims I do think answers the idea that she's just always angling for minorities.
TOTENBERG: In none of her race cases has Sotomayor been reversed by the Supreme Court, 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, Connecticut's fire department 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, it 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.
Judge 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, contended that the ruling could lead to quotas. Although he failed to get the full appeals to review the decision, the U.S. Supreme Court did, and, at oral arguments, sounded like it was headed towards reversal.
Conservative legal scholar Abigail Thernstrom is critical, not so much of the decision by Sotomayor and her fellow panel members, but by the way the serious legal issues were simply not addressed.
Ms. ABIGAIL THERNSTROM (Legal Scholar): I would not have cared if she came down on one side or another on those very serious questions, but instead she just, in effect, dismissed their importance.
TOTENBERG: Supreme Court advocate Tom Goldstein also says he's mystified as to why Sotomayor's three-judge panel kissed off in one paragraph a case in which the law points in two contradictory directions.
Mr. GOLDSTEIN: It's a puzzle why they didn't take it more seriously. My best bet is that the panel decided that the trial judge who had heard the evidence and grappled with the hard question had done as good a job as you could, and all they were saying is we agree with the trial judge, and it wasn't necessary for them to write anything else.
TOTENBERG: 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 mail here is 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's not for the courts to make policy, she said, adding that if policy is to be changed, Congress or federal agencies must do it.
Nina Totenberg, NPR News, Washington.
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