Tuesday, June 30, 2009

The Firefighter Case-an Embarrassment for Sonia Sotomayor

Sonia Sotomayor

Monday, the Supreme Court-divided along conservative/liberal lines- issued its decision on the famous New Haven firefighter case (Ricci v DeStefano) that ruled in favor of the white and Hispanic firefighters who were denied promotions they had earned on a city exam because no African-Americans qualified. Since no black firefighters had qualified on the exam, the city of New Haven-fearing a lawsuit, acted pro-actively in throwing out the exam. Not only does the ruling signal the possible end of race-based affirmative action, it also raises another question about Supreme Court nominee, Sonia Sotomayor and her legal judgment. As part of a three-judge panel in the Second Circuit, she had summarily dismissed the lawsuit by the firefighters claiming that were victims of discrimination.

Though some Republican senators on her confirmation panel will raise the issue, albeit gingerly, in her confirmation hearings, the votes are not there to derail her confirmation. Only if she stumbles badly in dealing with the questions or other issues, such as her "wise Latina" comment, is there any real possibility of her nomination sinking. This case underlies, however, the inescapable fact that we will have a race-conscious activist judge on the Supreme Court, one who has had seven of eight decisions that have gone to the Supreme Court for review overturned. Not an impressive record for one ascending to that same court.

"Welcome to the Supreme Court, Justice Sotomayor. We've read your writings."

Now let's look at the test itself. This test was highly-vented for flaws that would deem it culturally discrimnatory against African-Americans (whatever that entails). It was reviewed by minority firefighters among the supervisory ranks for flaws. It was deemed fair. Yet, no African-American scored high enough to merit promotion. So it was thrown out, and those white fire-fighters (plus two Hispanics) who qualified were denied their promotions in the name of racial equity. In that case, why not forget about promotional tests and throw them all out? Just pick your promotions along racial lines and be done with it?

And what message do we send to African-American employees when we throw out a test in which none qualified? Are we to say to our black employees that they are not good enough to pass a certain test because they are black? Just what are the factors that officials look for when determining that a test is culturally biased against a specific ethnic group?

To me, this case shows that affirmative action is an idea whose time has passed. Whatever need may have existed for it once no longer exists. It is nothing more than an insult to minorities which sends a message that they should be judged by lesser standards. Is that what they really want? Is it not a form of racism to set up an artificial system to ensure that the required number of minority employees are represented? Don't we believe that they are fully capable of achieving results on their own?

Don't you believe that, Judge Sotomayor?

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