Sotomayor and race: reverse-discrimination ruling rankles

Virtually since the moment President Obama announced Sonia Sotomayor as his nominee to the Supreme Court, America's chattering classes have been fixated on one quote:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," she said in a 2001 speech in Berkeley, Calif.

Now, however, critics looking to parse her statements might have further evidence of her leanings on affirmative action.

In Ricci v. DiStefano, a reverse-discrimination case that Sotomayor heard as a member of the 2nd US Circuit Court of Appeals, Sotomayor slips into the use of a royal "we" at a key moment, suggesting that she considered herself aligned with those defending race-based hiring practices, according to a Monitor analysis of an audio recording of the hearing.

The case concerns the city of New Haven, Conn., which threw out the results of a promotion test for city firefighters because no blacks qualified. Fourteen white and one Hispanic firefighter who were denied promotions because of the decision sued the city, claiming "reverse discrimination."

Sotomayor and two other judges from the 2nd Circuit found in favor of the city. The case is now before the Supreme Court.

During the hearing, Sotomayor was questioning one of the firefighters' lawyers. The lawyer had just taken issue with the judges' seeming characterization of firefighters as unskilled workers when Sotomayor fired back.

“Counsel, we are not suggesting unqualified people be hired," she said, before adding, "The city is not suggesting that, all right.”

Usually even-handed in her treatment of lawyers on both sides of the case, the use of "we" was uncharacteristic and – potentially – revealing.

Indeed, the New Haven case may be a greater point of concern for many Americans than a eight-year-old quote. Former-House-Speaker-turned-GOP-gadfly Newt Gingrich, so outraged by the quote initially that he called Sotomayor a racist, stepped back Wednesday, saying he had been "perhaps too strong and direct."

A new poll suggests that Republicans would be much better served by focusing on the New Haven decision. Some 71 percent of Americans disagree with the Sotomayor's ruling in the case.

"It is obviously an area that those trying to block her confirmation may be able to exploit politically," said Peter Brown, assistant director of the Quinnipiac University Polling Institute in Hamden, Conn.

The Quinnipiac Poll found that no political or demographic group supported the 2nd Court of Appeals’ decision. Even among blacks, support for the decision was only 33 percent – 53 percent of black respondents said the white and Hispanic firefighters should have been promoted. Among Hispanics, 24 percent of respondents supported the city and 68 percent supported the plaintiffs.

Another recent poll, however, shows general support for Sotomayor's nomination. A USA Today/Gallup Poll released Tuesday found that 54 percent of respondents wanted to see her confirmed, while 28 percent wanted her to be rejected, and 19 percent had not yet decided.

Moreover, a broad analysis of Sotomayor's decisions in the 2nd Circuit on cases that involved issues of race suggests that she more often rules against those alleging discrimination than in their favor. The scotusblog.com analysis finds that in 96 race-related cases, she ruled that discrimination had not taken place 78 times. It further notes that she has only disagreed with the majority in such cases four times, undercutting the argument that she is an ideologue