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Tie Goes to Kennedy In Ricci Case

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.

The other 11 bright judges who looked at this case saw it differently and here, the "tie" goes to Justice Anthony M. Kennedy's swing vote. The Court's majority ruled that the City's legitimate fear of a lawsuit by black firefighters had the results of the test been allowed to stand did not justify tossing the test. Caught between a rock and a hard place, Justice Kennedy wrote, the City should have accepted the results of the test and let the subsequent litigation unfold as it would.

The Court concluded that New Haven made a "race-based decision" to void the tests which only could be endorsed under the law if there were a valid defense to the conduct. There was no such defense, Justice Kennedy wrote, and the white and Hispanic firefighters who took the test (and who did better than their black counterparts) had a "legitimate expectation" that the results would be counted without any nod to race-conscious classification. If a City like New Haven couldn't jigger a test to make it easier for black candidates, Kennedy continued, it certainly couldn't toss the test outright and try again.

The dissenting Justices, including David Souter, the man whom Judge Sotomayor almost certainly will replace next month, noted that the white firefighters had no constitutional or statutory right to be promoted and did not, in the end, lose out on promotions because no promotions were given once the test was tossed. Most importantly, the dissenters noted that the majority "created" a new branch of jurisprudence in this area that was not available to the trial court, or to Judge Sotomayor's 2nd Circuit when those judges looked at the issues last year. When you get to make new rules to cover old cases, as the Justices get to do, it's easier to win.

The Court's 5-4 ruling is not a terribly controversial one; it certainly comports with common sense. But that doesn't mean that Judge Sotomayor's detractors on Capitol Hill and elsewhere now will be able to view it as proof that the nominee is outside of the mainstream when it comes to affirmative action rulings. It turns out that she was "wrong" about the case only because Justice Anthony M. Kennedy and his four conservative colleagues said so. And she was wrong because the Court's majority chose to essentially broaden the scope of precedent to cover the case—an option not available to her and her lower court colleagues.

We'll certainly hear more about this ruling when the Sotomayor confirmation hearings begin July 13th. But the closeness of the Ricci ruling takes a great deal of starch out of the arguments of her critics. Every current sitting Justice—including each of the darlings of the right—were reversed on appeal by the U.S. Supreme Court when they were federal appeals court judges. It's a rite of passage that says more about the vagueries of the law than it does about the intellectual qualifications or character of the men and women voting on these questions.

The Ricci decision is not a landmark case. It will be remembered more for its role in the Sotomayor nomination than it will be for its role in shaping affirmative action-discrimination cases around the country. All the Court did today is tell local and state officials that when they offer tests for promotions they had better make sure those tests are race-neutral and fair to all. And all the 5-4 ruling does is represent a small speed bump on Judge Sotomayor's road to the Supreme Court.

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.
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