Possible Obama Supreme Court Pick Slapped Down Reverse Discrimination Case in One-Paragraph Opinion

By Matt Cover | May 7, 2009 | 7:46 PM EDT

Judge Sonia Sotomayor, U.S. Court of Appeals for the 2nd Circuit. (AP photo)

[Editor's note: This article was originally posted on May 8, 2009.]

(CNSNews.com) –
U.S. Appeals Court Judge Sonia Sotomayor, mentioned as a possible Supreme Court nominee, voted to deny a racial discrimination claim in a 2008 decision. She dismissed the case in a one-paragraph statement that, in the opinion of one dissenting judge, ignored the evidence and did not even address the constitutional issues raised by the case.

The case, Ricci v. DeStefano, involved a group of 19 white firefighters and one Hispanic firefighter who filed suit in 2003 claiming that the city of New Haven, Conn., engaged in racial discrimination when it threw out the results of two promotion tests because none of the city’s black applicants had passed the tests.

Each of the plaintiffs had passed the exam. The case is currently before the U.S. Supreme Court.

The city threw out the results because it feared potential lawsuits from activist groups if few or no minority candidates were promoted. The city also claimed that in addition to potential lawsuits, promotions based on the test results would undermine their goal of diversity in the Fire Department.

The firefighters sued, arguing that New Haven was discriminating against them by deciding that the tests would promote too many white candidates and too few minorities.

Federal Judge Janet Bond Arterton rejected the firefighters’ appeal, siding with the city and saying that no racial discrimination had occurred because the city didn’t promote anyone at all.

U.S. Appeals Court Judge Sotomayor issued an order that affirmed Arterton’s decision, issuing a one-paragraph judgment that called Arterton’s ruling “thorough, thoughtful, and well reasoned,”
But according to dissenting Judge Jose Cabranes, the single-paragraph order issued by Sotomayor and her colleagues ignored over 1,800 pages of testimony and more than an hour of argument--ignoring the facts of the case.

“(T)he parties submitted briefs of 86 pages each and a six-volume joint appendix of over 1,800 pages; plaintiffs’ reply brief was over thirty pages long," Cabranes wrote.

"(O)ral argument, on December 10, 2007, lasted over an hour,” Cabranes explained, adding that more than two months after oral arguments, Sotomayor and the majority panel upheld the lower court in a summary order “containing a single substantive paragraph.”

Cabranes criticized Sotomayor and the majority for not explaining why they had sided with the city in their new opinion.
“This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit,” Cabranes wrote in his dissent.
Judge Cabranes also said that Sotomayor’s opinion failed to address the constitutional issues of the case, saying the majority had ignored the facts of the case as well.
“It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.  Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case,” the judge criticized.
“This Court has failed to grapple with the questions of exceptional importance raised in this appeal,” Judge Cabranes concluded. “If the Ricci plaintiffs are to receive such an opinion from a reviewing court they must now look to the Supreme Court. Their claims are worthy of that review.”
The opinion, or lack thereof, in the Ricci case is the last in a series of strange opinions issued by Sotomayor.
In another recent decision, U.S.A. v. Marcus, Sotomayor sent the case of a convicted violent sex trafficker back to a lower court because a lower court judge had not specifically told the jury that some, though not all, of the sex trafficking had taken place before it was specifically outlawed.
In another unusual case, then-district Judge Sotomayor ruled that a prospective lawyer must be given special consideration in taking the New York state bar exam because her dyslexia qualified as a disability under the Americans with Disabilities Act, despite the fact that she had failed the exam five times.
As a district court judge, Sotomayor also allowed a racial discrimination claim to continue when the plaintiff, a black nurse, sued Bellevue Hospital Corp because other nurses spoke mainly in Filipino, their native tongue, which she claimed made her feel harassed and isolated.
In 1994, Judge Sotomayor ruled in favor of two prisoners who claimed to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo, saying that “distinctions between ‘traditional’ and ‘non-traditional’ religions” are “intolerable.”
Sotomayor was originally nominated to the bench by former President George H.W. Bush on the recommendation of the late Sen. Daniel Patrick Moynihan (D-N.Y.). She was elevated to the Second Circuit Court of Appeals by President Bill Clinton in 1997.