Sotomayor and the New Haven Firefighters

I'll leave the analysis of the Sonia Sotomayor pick to those who are more familiar with her record (though I suspect we will all become very familiar with her record in the coming weeks), but I will say that her decision in the Ricci v. DeStefano case, which is currently in front of the U.S. Supreme Court, hardly inspires confidence. Writing in the Washington Post, George Will provides a one paragraph précis of the case:

In 2003, the city [of New Haven, Connecticut] gave promotion exams–prepared by a firm specializing in employment tests, and approved, as federal law requires, by independent experts–to 118 candidates, 27 of them black. None of the blacks did well enough to qualify for the 15 immediately available promotions. After a rabble-rousing minister with close ties to the mayor disrupted meetings and warned of dire political consequences if the city promoted persons from the list generated by the exams, the city said: No one will be promoted.

Sotomayor ruled against the firefighters, a decision that her colleague and fellow Clinton appointee Judge Jose Cabranes, writes The New Republic's Jeffery Rosen, denounced as containing "no reference whatsoever to the constitutional issues at the core of this case."

Reason's resident SCOTUS-watcher, Damon W. Root, weighed in on the Ricci case last month, suggesting the Justice Kennedy's swing vote might very well swing in favor of the plantiffs.

So what's the Supreme Court likely to say here? During last week's oral arguments, the Court divided neatly between left and right, with the four liberals seemingly sympathetic to the city and the four conservatives siding with Ricci. Which once again leaves Justice Anthony Kennedy as the likely swing vote. As an indication of Kennedy's thinking, consider the following exchange with Deputy Solicitor General Edwin Kneedler, who had just claimed that New Haven did not sort the test results by race. "Counsel, it looked at the results, and it classified the successful and unsuccessful applicants by race…and you want us to say this isn't race? I have trouble with this argument." Given that Kennedy's previous jurisprudence has been fairly libertarian on the subject of race-based classifications, this was a telling moment, suggesting that Kennedy is open to the plaintiffs' charges of reverse discrimination.

Which he should be. It's one thing for the government to forbid hiring practices (including those crafted to appear race-neutral) that intentionally discriminate. That's at least fully consistent with Title VII. But it's another thing to throw out perfectly valid civil service test results simply because the city doesn't like the outcome. There's nothing fair about that.