Just Ricci For A Story On Sotomayor

(AP Photo/Alex Brandon)

One by one, and not unexpectedly, the initial talking points against Supreme Court nominee Sonia Sotomayor are shriveling into dust. She's a "liberal, activist" judge? Sorry, Sotomayor's long record on the 2nd U.S. Circuit Court of Appeals doesn't come close to supporting that silly label. She's a "reverse racist" who's part of the "Latina KKK"? Try again. Her written opinions don't support that reckless charge, either. She's got "temperament" problems? Nope. Her colleagues (and law clerks) say she is tough, prepared and aggressive in her questioning—sort of like two-thirds of the current Supreme Court. Besides, since when is being rude to an attorney worthy of scorn?

It would be funny, if it weren't so sad, to chronicle the arch of coverage since last Tuesday's announcement that the White House had selected Judge Sotomayor to replace Justice David H. Souter, who is retiring from the Court at the end of the term. In the absence of any meaningful "gotcha" information about her character, credibility or credentials —no surprise since Judge Sotomayor was twice approved by the Senate and has been on the federal bench for 17 years—the debate over her qualifications has instead magnified small matters and turned them, artificially, into big ones.

For example, the blathering class has grandly conflated the significance (to her confirmation, anyway) of Judge Sotomayor's position in Ricci v. DeStefano, a sort of reverse discrimination case out of Connecticut that was heard a few months ago and is about to be decided by the current Justices. Along with most of her appeals court colleagues, Sotomayor half-heartedly (and unfortunately without much analysis) backed the City of New Haven in its ham-handed efforts to try to promote black firefighters at the expense of white firefighters. Her 134-word ruling almost certainly will be rejected by a majority on the Court.

Imagine that—a Supreme Court nominee is poised to ascend to that bench just as one of her recent decisions is overturned by the very colleagues with whom she will now resume her career. It's just like an American Idol smack-down only without the mean British guy. No, wait, there are plenty of windy protagonists around to tell us that they are "very concerned" about Sotomayor's position in the Ricci case. They are her conservative critics who are trying to use those 134 words in that appellate decision to portray Judge Sotomayor as a result-oriented hack.

It all makes for a great story—conflict, drama, intrigue. The truth, however, is that the case tells us a lot less about the nominee than you think. Under the ambiguous law as it now exists, Ricci is a closer case than many analysts suggest. At least three Justices and perhaps four will side with Judge Sotomayor's position. New Haven faced a terrible choice in the case-- throwing out the firefighter test or inviting a discrimination case brought by black firefighters. The difference of opinion over the legal import of that choice is as unsurprising as is the continuing debate over race-based policy.

And, even if the Court overturns her, the fact is that federal appeals court judges frequently get overturned by the Supreme Court. Indeed, each of the currents Justices, all of whom were once federal appeals court judges, were during that time reversed by the Supreme Court. Show me an appeals court judge who is never overturned and I'll show you a tepid appeals court judge. It comes with the territory and Judge Sotomayor's record of reversals is not materially better or worse than some of her fellow All-Star colleagues.

Most importantly, as Thomas Goldstein of Scotusblog has meticulously pointed out, Judge Sotomayor has consistently rejected racial discrimination claims. So while her critics will be able to point to Ricci and have their Perry Mason moment, Judge Sotomayor's supporters will be able to answer with scores of other rulings in which men and women alleging all sorts of discrimination have failed to persuade her to grant them relief. If she is wrong about Ricci, it's the exception to her record and not the rule. But you wouldn't know that by some of the shallow coverage of the case.

It will be embarrassing for Judge Sotomayor if she is, indeed, reversed on the brink of her ascension to the Court. I'm sure it's the last thing that she and the White House want. But as far as precluding her confirmation, or telling us anything truly meaningful about her position on cases that touch upon race in America, it's the equivalent of having a zit on your wedding day. Everyone notices, it doesn't spoil the day, and in the end no one really cares or even remembers.



(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.