The Times' lead editorial Wednesday [1]proudly flew the liberal flag, calling the Supreme Court's 5-4 decision in Ricci v. DeStefano (aka the New Haven firefighter case) "a blow to diversity in the American workplace." The case made news because Obama's Supreme Court nominee Sonia Sotomayor, as part of a three-judge appeals court panel, had curtly dismissed the discrimination claim of white firefighter Frank Ricci.
The Supreme Court overturned ruled the New Haven Fire Department had been wrong to throw out the results of a promotion exam after black firefighters did poorly on it, only white and Hispanic firefighters did well enough to earn promotions. The Times was not happy:
On Monday, the Supreme Court dealt a blow to diversity in the American workplace.
The court ruled, 5-to-4, that New Haven acted illegally when it threw out a promotion test on which minority firefighters had done poorly. In doing so, it put a new, narrower definition on Title VII of the Civil Rights Act of 1964, which is intended to root out discriminatory policies.
The case is already being used as ammunition against Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court, who sided with New Haven at the appeals court level. If the Monday ruling says anything about Judge Sotomayor, however, it underscores the reasonableness of her views.
Many black and Hispanic firefighters took New Haven's promotion exam, but few passed. This sort of racial disparity often makes an exam illegal. Concerned that it would be sued by minority firefighters, New Haven threw out the test. A group of white firefighters sued, alleging that their civil rights had been violated.
The editorial raised a weak defense of Sotomayor's now over-turned ruling, saying she was actually practicing judicial restraint:
On another point, the ruling underscored the emptiness of the "judicial activist" label that Republicans like to use in debates over nominees to the federal courts, including Judge Sotomayor. In the firefighters' case, she actually refused to second-guess the city's decision - an act of judicial restraint. It was the court's conservatives, including Chief Justice John Roberts, who voted to overturn the decision of an elected government.
But as columnist Ann Coulter [2]pointed out in rebutting a similar defense of Sotomayor's reasoning:
Concerned that Sotomayor's famed "empathy" might not shine through in cases such as Ricci v. DeStefano, the Democrats are claiming - as Obama spokesman Robert Gibbs said on MSNBC - that she was merely applying "precedent" to decide the case. You know, just like conservatives say judges should.
This was an interesting claim, in the sense that it was the exact polar opposite of the truth.
To be sure, there is "precedent" for racial discrimination by the government, but Plessy v. Ferguson was overturned in 1954 by Brown v. Board of Education.