WASHINGTON – U.S. Supreme Court nominee Sonia Sotomayor hid behind other judges at the Second Circuit appeals court on four occasions when she could have defined her view on a fundamental contradiction in civil rights law.
In a case that divided firefighters of New Haven, Conn., Sotomayor joined two opinions affirming a lower court decision without explanation and silently concurred in two more opinions after all 13 judges of the circuit wrestled with the decision.
She and six other judges absolved themselves of responsibility and sent the hot potato issue to the Supreme Court.
On June 29 the Supreme Court reversed the decision, five to four, holding that New Haven Mayor John DeStefano improperly rejected results of tests for promotions.
"All the evidence demonstrates that the city rejected the test results because the higher scoring candidates were white," Justice Anthony Kennedy wrote.
Employers can't violate the law's ban on disparate treatment in order to carry out its ban on disparate impact, he wrote.
He added that the city didn't prove it could find a viable alternative to the tests.
Dissenter Justice Ruth Bader Ginsburg needed no proof, preferring to assume the existence of better tests that would produce better results.
She wavered, however, by declaring that cities can't run a series of tests until they get the results they want.
For statistical purposes she grouped blacks and Hispanics together and isolated whites, though Hispanic firefighters sued the city along with whites.
Blacks loyal to the white mayor called white firefighters Klansmen, falsely accused them of cheating, and complained about recruits with too many vowels in their names.
Kennedy, often the middle man of the nine justices, lowered the temperature but left Ginsburg itching for the next chance to push the hot button.
"The Court's order and opinion, I anticipate, will not have staying power," she wrote.
Justice David Souter, whom Sotomayor will replace if the Senate confirms her, joined the dissent. So did Justices John Paul Stevens and Stephen Breyer.
Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas joined Kennedy and Alito in the majority.
Kennedy credited New Haven with "painstaking analyses" of the relevancy of questions on tests for promotion to lieutenant and captain.
The city's consultant, Industrial Organization Solutions, picked 10 whites and 20 minorities to draft questions and examine candidates.
At oral examinations in 2003, each candidate answered a three-member panel that included a white, a black and a Hispanic.
Written exams counted for 60 percent of scores and oral exams counted for 40 percent.
When the consultant tallied scores, no black candidate qualified for any of the eight openings for lieutenants or the seven openings for captains.
Blacks would have qualified for promotions later, if the city had accepted the results.
No Hispanic qualified for immediate promotion to lieutenant, and two qualified for immediate promotion to captain.
Boise Kimber, a black member of the board of fire commissioners, asked city administrator Karen Dubois-Walton to oppose certification of the results.
After Kimber protested at a meeting of the civil service board, Mayor DeStefano told Dubois-Walton he would oppose certification.
Christopher Hornick, a consultant in competition with Industrial Organization Solutions, criticized the tests but stopped short of recommending rejection.
In 2004 the civil service board voted against certification.
Seventeen white and Hispanic firefighters sued the city in federal court, and in 2005 both sides moved for summary judgment.
In 2006 District Judge Janet Aterton ruled in the city's favor.
"It appears that the reasons for testing disparities remain elusive," she wrote.
She distinguished starting over from the illegal practice of adjusting results by race.
She wrote that while race was taken into account, the result was race neutral.
"All the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process," Aterton wrote.
Plaintiffs showed no injury or disadvantage, she wrote.
On appeal, Sotomayor and two other Second Circuit judges adopted Aterton's reasoning last year in a summary order that lacked force as precedent.
Their unsigned order held that the civil service board "was simply trying to fulfill its obligations" under Title VII of the Civil Rights Act.
Four months later they withdrew the order and issued an unsigned opinion that set precedent while repeating the endorsement of Aterton's reasoning.
One of the judges in the circuit proposed an "en banc" hearing before all 13 active judges, and asked for a poll.
Sotomayor and six other judges denied the hearing.
Circuit Judge Barrington Parker wrote that an employer may take "facially neutral, albeit race conscious, actions" to avoid liability for disparate impact.
"The city did not classify or confer any actual benefit on applicants on the basis of race," he wrote.
Sotomayor joined the opinion.
Circuit Judge Robert Katzmann wrote that the court proceeds to en banc hearings only in rare and exceptional circumstances.
The issues were sharply defined for the Supreme Court, he wrote.
Sotomayor joined the opinion.
At the Supreme Court, Kennedy held that statistical disparity "is far from a strong basis in evidence that the city would have been liable under Title VII."
He wrote, "The city's assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record."
Kennedy wrote, "Allowing employers to violate the disparate treatment prohibition based on a mere good faith fear of disparate impact liability would encourage race based action at the slightest hint of disparate impact."
He wrote, "Even worse, an employer could discard test results or other employment practices with the intent of obtaining the employer's preferred racial balance."
Ginsburg answered that, "Relying heavily on written tests to select fire officers is a questionable practice, to say the least."
She wrote, "The White firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy."
She wrote, "But they had no vested right to promotion. Nor have other persons received promotions in preference to them."