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June 1, 2009


One of Supreme Court nominee Sonia Sotomayor’s most controversial judicial decisions was her appeals court ruling upholding the dismissal of a case brought by a group of white New Haven, Conn., firefighters. The firefighters had taken an exam for promotions, but the city threw out the results because no black candidates had scored high enough to be eligible. Minority candidates had previously won challenges against job promotions based solely on exams. The white firefighters, who spent time and money studying for the exam, sued, arguing that the decision to discard the test results discriminated against them. Now their case is pending before the court Sotomayor may soon join.


Is the judicial philosophy reflected in her decision what the Supreme Court needs?




Judge Sotomayor’s decision in the New Haven firefighters’ federal appeal essentially re-writes federal and local law to achieve an outcome she desires. Federal law makes it illegal “to adjust the scores of … or otherwise alter the results of, employment related tests on the basis of race.” This is hard-won civil rights legislation now being turned on its head. New Haven law also prohibits racially determined outcomes for employee promotions, which are instead to be determined solely on merit. So-called “reverse discrimination” cases have been found unconstitutional in dozens of court decisions at the highest levels. When a judge ignores previous court decisions and tosses out the plain language of a federal statute and local law, that judge is fairly described as an activist. As Judge Sotomayor recently admitted on video, she believes that the “appeals courts are where policy is made.” The Supreme Court needs a judge, not a policymaker.

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