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In the past 13 months, no fewer than 22 distinguished federal appeals court judges have examined the issues surrounding the now-famous Ricci v. DeStefano employment discrimination case involving New Haven, Connecticut’s firefighter promotion system. Of that number, 11 believe under the law that the City did the best it could in difficult circumstances after black firefighters performed poorly on standardized tests. And 11 believe that white firefighters were discriminated against when the City threw out the results of the tests and tried for a Mulligan.

On the 2nd U.S.Circuit Court of Appeals, the score was 7-6 in favor of the City. At the United States Supreme Court, the score was 5-4 in favor of the challengers. Yes, the Supreme Court gets the final call in matters like this. But let’s not pretend that the Justices are so remarkably brighter and wiser than are their lower federal court colleagues that their votes are seeped in justice and the lower-court votes wallow in ignorance. The fact is that the case generated a series of legal issues that were remarkably close calls given the Court’s past precedent (and the new one it has just adopted).

We particularly care about this case, and this result, because the likely next Supreme Court Justice, 2nd U.S. Circuit Court Judge Sonia Sotomayor, was one of the 22 jurists who took a crack at deciphering what happened in New Haven. Last June, the Supreme Court nominee, in a brief panel ruling, sided with the City in finding that because no firefighters were promoted when the initial test was tossed out there was no valid discrimination claim. Six of her colleagues on the 2nd Circuit, and four of the Court’s most liberal Justices agreed with this view.

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