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EDITORIAL: Sotomayor reversed again

- The Washington Times - Tuesday, June 30, 2009

Martin Luther King can rest easy. His dream is being protected by the Supreme Court - against and over the opinion of Supreme Court nominee Judge Sonia Sotomayor.

The high court's landmark decision in Ricci v. DeStefano, the New Haven, Conn., firefighters case, is a dramatic stride toward the cherished goal of achieving a colorblind society. In Ricci, the court told us that people of ability can succeed regardless of skin color, and government bureaucrats seeking racially biased outcomes can be thwarted in their racist designs.

The linkage to Judge Sotomayor comes at a critical time during her nomination process. She was the leading voice on the U.S. Court of Appeals for the 2nd Circuit, which affirmed the lower court ruling against the high-scoring firefighters. This drops her record to 2 for 6 before the highest court, and she probably is the most overturned nominee to seek the high bench in history.

Commentaries on the case almost universally stress that the victors were "white" firefighters, not those who scored highest on the race-neutral test. But skin color should never have been at issue. New Haven went to great lengths to ensure that the test for promotion to captain would not be racially biased. The city was vexed in explaining the outcome, overlooking the obvious conclusion that those who were implicitly promised promotions based on race did not feel the need to compete.

Contrast this attitude to that of lead plaintiff Frank Ricci, who is dyslexic and spent thousands of dollars to have test-preparation materials read on tape and studied for months. If the people who had scored poorly on the test had put that much effort into preparation, perhaps they would have done better. Instead, they were going to be given a do-over because they chose not to try.

The issue should not be who is the most racially acceptable candidate for promotion but who is best for the job. Public safety should not be held hostage to race norming. Justice Ruth Bader Ginsburg's dissent - that in Title VII of the 1964 Civil Rights Act, "Congress endeavored to promote equal opportunity in fact, and not simply in form" - is unconvincing. She would require racially balanced outcomes in every single test regardless of the steps taken to ensure equal opportunity and regardless of the actual performance of the people taking it.

When the results in New Haven did not give the anticipated outcome, the city balked and canceled the promotions, presumably until it could devise another test with a politically correct result. If Justice Ginsburg and others of her persuasion were intellectually honest, they would simply come out in favor of racial quotas rather than going through this legal charade.

The case is another illustration of Judge Sotomayor's biased view toward jurisprudence. There are numerous examples, from her 1994 comment that "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion" than a white judge, to her lengthy 2001 exposition on the centrality of ethnic identity to her decision-making, "A Latina Judge's Voice." A close examination of the 300 boxes of materials from Judge Sotomayor's years as a lawyer with the Puerto Rican Legal Defense and Education Fund would no doubt lend even greater insights into her views on the importance of ethnically weighted outcomes. The danger of the contents of these 300 boxes of information is one reason why Senate Democrats are hell-bent to rush through her hearings before the record can be revealed.

Most Americans, including a majority of Democrats, side with the high-scoring firefighters in the Ricci case because their plight spoke to the American sense of fair play. Those same Americans would not approve of Judge Sotomayor's inherently biased approach to justice, and Senate Democrats do not want to take the chance that they will find out. Once their hurry-up offense puts Judge Sotomayor on the bench, she will be free to enshrine her racially biased views into case law for decades.

The New Haven firefighters who did well on the promotion test played by the rules. They did what was asked of them to advance their careers and provide for their families. They prepared; they studied; they excelled. They competed fairly on a level playing field and came out on top. But honest achievement is not valued in Judge Sotomayor's America.

In Judge Sotomayor's America, people are judged by the color of their skin, not the content of their character. In Judge Sotomayor's America, ability and the drive to excel are sent to the back of the bus. In Judge Sotomayor's America, justice only applies to those to whom she says it does. In Judge Sotomayor's America, white men need not apply.