NYT Continues to Probe Sotomayor's Racial Rulings

Legal reporter Adam Liptak hints that the decision Judge Sotomayor and her two appeals court colleagues reached in the reverse discrimination case Ricci v. DeStefano was flawed and unprofessional.

Surprisingly,the http://timeswatch.org/articles/2009/20090529161738.aspx " target="_self">Times continues to hammer - or at least obliquely criticize - Obama Supreme Court nominee Judge Sonia Sotomayor's notorious non-decision in the case of Ricci v. DeStefano, in a Saturday front-page story by Adam Liptak, "Sotomayor Case Draws Scrutiny - In Ruling on Bias, Few Clues to Reasoning."

The case involved Frank Ricci and 17 other firefighters, whofiled arace discrimination claim against thetown of New Haven, Conn., after itthrew out the results of a promotional exam because black firefighters had performed poorly on it. Basically, Ricci was denied promotion because he was white.

Legal reporter Liptak wrote that the widely anticipated appeals court decision was puzzlingly curt, anticlimactic, and not very impressive:

But in the end the decision from Judge Sotomayor and two other judges was an unsigned summary order that contained a single paragraph of reasoning that simply affirmed a lower court's decision dismissing the race discrimination claim brought by Frank Ricci and 17 other white firefighters, one of them Hispanic, who had done well on the test.

The Ricci case, bristling with important issues, has emerged as the most controversial and puzzling of the thousands of rulings in which Judge Sotomayor participated, and it is likely to attract more questions at herSupreme Court confirmations hearings than any other.

The appeals court's cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.

Liptak, whose reportingdisplays far more balance than his legal reporter colleague Neil Lewis, was politely critical of the procedure use by Sotomayor and her two fellow judges in rejecting Ricci's claims of discrimination:

Her extensive and probing questions at the argument were typical of her methodical approach to cases, and they offer sometimes conflicting hints about her views on when the government may take account of race in decisions concerning hiring and promotion.

At times, her questions were small lectures on the governing legal standards.

"You have to look at the test and determine whether the test was in fact fair or not," Judge Sotomayor told a lawyer for the defendants, Richard A. Roberts. "If you're going to say it's unfair, point to specifics, of ways it wasn't, and make sure that there really are alternatives."

But the summary order Judge Sotomayor joined drew none of those distinctions.