- The Washington Times - Monday, June 1, 2009

ANALYSIS/OPINION:

Suppose a black female nurse is seriously injured during her work at a hospital and is forced to take a medical leave of absence. When she returns almost a year later, she reapplies for new jobs but doesn’t get any offers of comparable salary and seniority. For one of the jobs for which she was turned down, two white women with disabilities are chosen. For another job for which she was rejected, a younger white male is hired.

So how did Judge Sonia Sotomayor rule? The ultra-right talk-show hosts who spent all last week attacking the judge as a “liberal activist” or even a “racist” would surely predict that she would have ruled in favor of this sympathetic black female with a severe disability.

They would have been wrong.

Read Judge Sotomayor’s 11-page published opinion, on behalf of a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals, in the case of Norville v. Staten Island University Hospital. The case, decided Nov. 3, 1999, can be found in the published federal court decision reports at 196 F.3d 89.

She found no race or age discrimination and voted for a new trial on the disability claim because of legally erroneous jury instructions.

Sure, it will be argued, this is just one case. But the Norville case is emblematic - not atypical. Read the more than 3,000 decisions in which Judge Sotomayor participated and the more than 400 opinions that she signed during her 12 years on the appeals court. I am betting you will find that in case after case, she has voted based on applying the law to the facts - even where the result is contrary to the expected “liberal” ideological position, such as her vote to protect a racist cop from dismissal on free-speech grounds (Pappas v. Giuliani, 2002), or to uphold the Mexico City policy barring foreign groups receiving U.S. funds from performing or supporting abortions (Center for Reproductive Law and Policy v. Bush, 2002).

In the Norville case, plaintiff Wendy Norville was certainly someone who one would expect to draw many people’s “empathy.” The 56-year-old black woman suffered a severe spinal injury while working in the Staten Island University Hospital’s neurology unit and was forced to take a one-year leave of absence.

When she returned, she claimed that she was denied substitute jobs comparable in pay and job security as her prior job, and that the open jobs for which she was qualified were given to whites and a younger male because of illegal race, age and disabilities discrimination.

On the race-discrimination claim, Judge Sotomayor and her co-panelists applied the required legal standard of discrimination based on race in granting a disabled person “reasonable accommodation” in working on another job. Judge Sotomayor found that there was insufficient evidence to show that the two whites were “similarly situated” in disabilities or performance to Ms. Norville; thus, she didn’t make a case of race discrimination by the hospital.

Similarly, on the age discrimination claim, Judge Sotomayor found that, while there was some evidence supporting Ms. Norville as qualified for the substitute job, the hospital’s reasons for preferring the younger applicant based in part on qualifications were not merely a “pretext,” the required legal standard.

On the disabilities claim, however, Judge Sotomajor and her two fellow appellate judges found that the trial judge had issued legally incorrect instructions to the jurors that could have affected their verdict against Ms. Norville. The judge erred by not telling the jury that offering a disabled person a new job with less seniority and job security does not constitute a “reasonable accommodation” under the Americans With Disabilities Act.

So in the run-up to Judge Sotomayor’s confirmation hearings and Senate confirmation vote, try to ignore the overheated rantings and nonfactual name-calling of certain conservative radio talk-show hosts and TV cable hosts and guests.

As to Judge Sotomayor’s statement that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life”: The obvious answer is to view the statement in the broader context of what she meant - similar to what Judge Samuel A. Alito Jr. said during his confirmation hearings, i.e., that his background coming from an immigrant family would inevitably be “taken into account” as he made his judicial decisions.

But let’s get it over with: The word “better” was, in my opinion, a flat-out gaffe, as President Obama and his press secretary suggested last week. I expect that Judge Sotomayor will say as much during her confirmation hearings - similar to when Judge John G. Roberts Jr. acknowledged second thoughts concerning some of his legal memoranda written many written years before as a Reagan administration attorney.

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