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GOP Jumps On Ricci, But Sotomayor's Confirmation Chances Remain Strong

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The Supreme Court's ruling that a group of white firefighters were unfairly denied promotions based on their race was the worst of three possible outcomes for Judge Sonia Sotomayor. Still, it remains unlikely to dampen her hopes of confirmation to the Supreme Court.

In a 5-4 decision the Supreme Court reversed a ruling Sotomayor had made while on the Second District Court of Appeals. The city of New Haven, it determined, had been wrong to scrap a promotion exam for its firefighters out of fear that it would be subject to legal action because none of the individuals who passed were Black or Hispanic. In the process, the ruling in Ricci v. DeStefano thrusts the issue of race back into the political debate . And it provides critics of Barack Obama's Supreme Court nominee another chance to paint her as out-of-touch in her jurisprudence.

Within minutes of the announcement of the decision, the Republican National Committee had blasted out to reporters a summary of the case, noting that this was the seventh time a Sotomayor decision had been reversed by the Supreme Court. The conservative Judicial Confirmation Network, meanwhile, compared Sotomayor's decision in Ricci to "a pilot error
resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One," the group added.

In a conference call planned by the another conservative group, The Federalist Society, less than an hour-and-a-half after the ruling came down, Roger Clegg, president and general counsel for the Center for Equal Opportunity, said the case was "absolutely" a rebuke of Sotomayor's decision.

"It certainly gives the Senate Judiciary Committee a lot to ask her about," he said. "And the fact that the nominee is out of synch with the president's own legal experts who, of course drafted and filed the administration's brief... suggests we have somebody who is quite out of synch with the right approach to the law in this area."

Nevertheless, in talking to advocates working in favor of the Sotomayor nomination, there is no sense of panic. "She's gonna end up on the Supreme Court," said one high-ranking Democrat, who described the Ricci decision as a bump in the road.

While Clegg and others on the Federalist Society call argued that Court "unanimously reversed" Sotomayor's ruling (with all nine Justices arguing that the case needed to be reconsidered by lower courts), progressives are making note that four Justices, including the retiring David Souter, did not directly refute Sotomayor's legal reasoning.

Ironically, the argument being used in Sotomayor's defense is that she was merely following precedent when deciding the case. Those defending her argued that it was the Supreme Court itself that played the role of activist.

Another Democrat who is working on her nomination argued that federal law essentially bound Sotomayor when she affirmed a district court ruling upholding New Haven's decision to disregard the promotion exams. "To do anything but would have been judicial activism," the source said. There were, after all, earlier decision made by the same Second Circuit Court of Appeals panel that preceded and reflected the ruling made by Sotomayor and the other two members of her three-judge panel.

The Supreme Court, Sotomayor's defenders argue, had a different purview when it came to the case: interpreting the law's meaning as opposed to simply interpreting judicial standards. As such, in deciding Ricci the Court essentially created new law, holding that employer can only reconsider a promotion exam when it has a "strong basis in evidence" that they could be held liable if they certify the test.

"Five justices were uncomfortable with the twenty five-year-old rule in the Second Circuit, which says that employers have broad discretion to reconsider exams that result in one race doing better than another," said the Democrat activist working on the Sotomayor nomination.

In the end, what may have hurt Sotomayor more than having her decision reversed by the Court is that she didn't make a more detailed argument in the first place. Her three-judge panel nearly had its decision revisited by the entire Second District Court itself, with only a slim majority (seven out of the thirteen judges) ruling to not re-consider the case.

On Monday, moreover, Supreme Court Justice Anthony Kennedy seemed to agree with critics who considered Sotomayor's panel dismissive of the Ricci case. In writing the majority opinion, Kennedy noted that the appeals court's rejection of the white firefighter's appeal had come in the form of "a one-paragraph, unpublished summary order."

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