It is highly likely that Sotomayor will be confirmed as a Justice on the Supreme Court. That said, those few in congress who oppose her have said that they will try to use the hearings as an educational tool; to get out the message of what a judge should be and how they should act to the American people. I tend to think this is a good idea, as any lesson in civics on television or radio is a good idea.
There is, however, a real case to be made that Sotomayor is unqualified to be a Justice on the Supreme Court. I’m not talking about the well known statements she has made regarding Latina women, or even that appellate courts are where law is made. Those statements speak to the issue, and are in themselves worthy of critical review, but there is more to be learned from a single case that she heard.
By way of disclaimer, let me say that I am not a lawyer, and further that I am going to water down the concepts involved a bit. Much as I dislike the wiki, it does have fairly-fact-only articles on both The Second Circuit Court of Appeals decision and The Supreme Court decision for Ricci v. DeStefano.
The case, in short, was about firemen who had taken a test in New Haven, CT and done well being denied the promotion associated with the test due to the fact that not enough minorities had done well enough for the promotion. When the case got to the Second Circuit, the judges affirmed the lower court’s summary judgment on the case, against Ricci, and it is here that I find the biggest problem with Sotomayor.
For a case to be judged summarily, there must be no facts (relevant to the law) in question, and that was not the case with Ricci v. DeStefano. In fact, Ricci had a witness from the group that produced the very test that was thrown out ready to testify to the fact that the test was designed specifically not be racially biased. Further, New Haven itself had gone through the process of having the test made specifically so that it would not be racially biased. Fundamental to the New Haven case was that the test must be racially biased, necessarily disregarded, and therefore no discriminatory act took place in so doing. If it could be shown that the test was in fact not racially biased, then the landscape of the case changes, and suddenly the plaintiff’s case looks more reasonable. Regardless of right or wrong, as a matter of law there was little (if any) room for summary judgment.
