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Sotomayor's Poor Judgment
Renee Trotter
July 9, 2009
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Imagine that you have a disability. You have worked hard at your job, and you finally get the opportunity to be promoted. The reality is, though, that your disability will make it more difficult to pass the exam required to be considered for this promotion. So, you work hard. You invest a significant amount of time and money to prepare for the exam. In the end, your hard work pays off. You not only pass the exam, but you score near the top of those taking the exam.

Then the unthinkable happens. You find that you can't be promoted because not enough of the "right type" of people scored high enough to be eligible for promotion. Seems unfair, doesn't it?

Frank Ricci agrees with you. It happened to him. Ricci is a firefighter in New Haven, Connecticut who has dyslexia. He had to work harder than most, spending over $1,000 and studying for up to 13 hours a day to pass the exam. And pass the exam he did - he ranked in the top 10 percent of 77 applicants.

Still, the town of New Haven decided that neither he nor anyone else who did well on the exam would get the promotion that they had earned because the results of the test were not racially diverse enough. At issue was the fact that the 19 black firefighters who took the exam scored too low to qualify for promotions, so the results were deemed racially unacceptable, and no one was promoted.

The town won on summary judgment in the United States District Court for the District of Connecticut. In doing so, the court said that Mr. Ricci and the other firefighters had to prove four things: (1) that they were members of a protected class, (2) that they were qualified for the position, (3) that there was an adverse employment action, and (4) that there existed an inference of discrimination on the basis of being in that protected class.1 The District Court in Connecticut found that Mr. Ricci and the other firefighters failed all four standards. The court concluded that since no one was promoted, the inference of discrimination based on race was negated. Further, the city of New Haven said that a good faith attempt to comply with Title VII was a "legitimate, nondiscriminatory reason for refusing to certify the exams."2

But a look at the four standards the court thought necessary to actually prove discrimination shows us that the summary judgment should have gone to the firefighters. (1) Race is, by law, a protected class. (2) Mr. Ricci and the other firefighters who passed the test were qualified for the promotions before the tests were thrown out. (3) The firefighters were not promoted. They did what they were supposed to do, and they were denied the promotion anyway. That constitutes a negative employment action. (4) The exam was thrown out because the results would create a situation where a disproportionate number of minorities would be ineligible for promotions.3 What the city effectively said was that too many people of your color passed.

Any reasonable person would find it easy to see that the decision was based solely on race.

The city argued that it needed to do this so as not to violate Title VII statutes. But is it reasonable for the government to discriminate based upon race in order to comply with a law that prohibits discrimination based on race?

As Chief Justice John Roberts said, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."4

The District Court's ruling for summary judgment for the town was in error. The Supreme Court agreed. However, at least the District Court supported its reasoning with what it thought was the correct precedent and applied it to facts.

At the appellate level, something really bizarre happened. Sonya Sotomayor, President Obama's nominee to the highest court in the land, along with two other judges on the 2nd Circuit Court of Appeals, affirmed the District Court in an unpublished decision. No precedent cited no case law, no statutes, no reasoning at all to justify her decision. The reasoning would be familiar to any two year-old: "Because we say so." Sotomayor's judgment was so poor that fellow judges on the 2nd Circuit, nominated by Democrats, independently criticized her judgment in not writing a published opinion.

At the Supreme Court level, while the Ricci decision was a 5-4 split for the firefighters (and against Sotomayor), none of the nine Justices agreed with Sotomayor. All of the Justices saw many issues worth discussing and recognized that the case presented a difficult set of facts that should not be taken lightly, as Sotomayor and her colleagues did.

What Sotomayor did in this case should frighten every American and should be a major topic of discussion at her upcoming hearings. Is this really the type of judge we want deciding some of the most controversial issues in the United States? Do we want a Supreme Court Justice who feels she has the right to deny rights of one side or another based upon who she likes and with no explanation or basis in law? Do we want a Justice or a dictator? This is not a decision to be taken lightly.

Remember, the person that Sotomayor empathizes with next may be someone opposed to you.

ACTION: Please call your Senators at (202) 224-3121 and urge them to oppose the nomination of Judge Sonya Sotomayor.

Mrs. Trotter is Concerned Women for America's Legal Intern through the Alliance Defend Fund's Blackstone Legal Fellowship Program.


End Notes
  1. Ricci v. Destefano, 554 F. Supp. 2d 142, 151-152 (D. Conn. 2006).
  2. Id at 152.
  3. Id at 152.
  4. Parents Involved v. Seattle School District, 551 U.S. 701 (2007).



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Concerned Women for America
Legislative Action Committee
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Phone: (202) 488-7000
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