Ruling reverses Sotomayor in firefighter case

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By Stephen Dinan and Tom LoBianco

Casting a wary eye on affirmative action, the Supreme Court ruled Monday that white firefighters faced unlawful discrimination when their city threw out a promotion test after not enough minorities did well on it.

The 5-4 ruling, one of a flurry of decisions issued on the last day of the court's 2008-09 session, marked another reversal by the high court for Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court. It is also part of a steady march rightward for the court on discrimination cases, after recent rulings on voting rights and age discrimination.

Republicans said they will ask Judge Sotomayor about the case at her confirmation hearing next month, but her backers said her nomination is not in jeopardy, and said she was following precedent as an appeals court judge by ruling against the New Haven, Conn., firefighters.

In some of its other decisions Monday, the court declined to allow a lawsuit against four Saudi princes from families of Sept. 11 victims; scheduled more arguments in a campaign-finance case over a movie biography of Hillary Rodham Clinton; and said it would hear arguments from the National Football League, which is seeking an exemption from federal antitrust laws.

The New Haven, Conn., firefighters case presented competing claims of discrimination -- the city said it was following one part of Civil Rights Act laws, while the firefighters said they were being denied promotion as required by another part of the law.

Justice Antonin Scalia said eventually the court may overturn key parts of employment discrimination law as violating the Constitution. But for now, he and four other justices ruled narrowly that the city can't discard a test merely because the statistical outcome was bad for minorities.

"Once that process has been established, and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race," Justice Anthony M. Kennedy said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr.

Critics, including the Obama White House, said the majority was making up new rules for states and localities to figure out -- something the critics said was tantamount to judicial activism.

"The Supreme Court clearly had a new interpretation for Title VII of the Civil Rights Act. And so I think some of the very concerns that members of the Senate have expressed about judicial activism seem to be at the very least upside down in this case," said press secretary Robert Gibbs, who went on to defend Judge Sotomayor, who as part of the 2nd U.S. Circuit Court of Appeals ruled against the firefighters.

Members of Congress said they will try to overturn the ruling through legislation, and D.C. Delegate Eleanor Holmes Norton, a Democrat, vowed to introduce a bill when Congress gets back from its July 4 vacation.