Racial ruling looms large for Sotomayor

WASHINGTON Tue Jun 2, 2009 11:16am EDT

1 of 4. US Supreme Court nominee Judge Sonia Sotomayor is pictured in Senate Majority Leader Harry Reid's office in the US Capitol in Washington June 2, 2009.

Credit: Reuters/Jonathan Ernst

WASHINGTON (Reuters) - As the first Hispanic nominee to the U.S. Supreme Court, Sonia Sotomayor has been praised as a trailblazer in her field but race-based hiring practices will likely loom large at her confirmation hearings.

With 17 years of experience as a federal judge and top grades from Princeton and Yale, Sotomayor's qualification to sit on the nation's highest court will not likely be an issue in the Senate hearings, which will likely occur in July.

But she will face tough questioning about her 2008 decision as part of a three-judge panel to rule against a group of white firefighters in New Haven, Connecticut who say they were denied promotions because of their race.

Sotomayor's decision could be overruled by the Supreme Court this month, shortly before she appears for review before the Senate Judiciary Committee, and conservative activists see an opportunity to mobilize opposition against a candidate who otherwise is expected to be confirmed, barring extraordinary circumstances.

"The stars have lined up to make this an incredibly important issue," said Wendy Long, chief counsel of the conservative Judicial Confirmation Network.

The case has stirred up lingering resentments centered around race-based hiring practices designed to remedy decades of discrimination. Opinion polls show increasing support for so-called "affirmative action" programs even as many question the fairness of such programs.

Sotomayor's 2001 comment that a Latina judge "would more often than not reach a better conclusion than a white male who hasn't lived that life" has also given ammunition to conservatives hoping to use race to derail her nomination.

The firefighters' case stems from a 2004 lawsuit filed by 19 white firefighters and one Hispanic firefighter who said they would have been promoted had the city of New Haven not thrown out the results because no blacks had scored high enough to qualify.

The city argued that if it had gone ahead with the promotions based on the test results, it would have risked a lawsuit claiming that the exam hurt minorities in violation of the 1964 federal civil rights law.

MIXED OPINIONS OF RULING

Sotomayor sat on a three-judge panel that heard an appeal of the case and sided with the city, affirming a lower court's opinion.

The panel expressed sympathy for the plaintiffs but did not explain its reasoning behind the decision, prompting a fellow appeals court judge to criticize the decision as "perfunctory."

Allies say the brief opinion in that case shows that Sotomayor is a cautious legal thinker who is careful to follow precedent.

"They simply were bound by the previous decisions of the court, and on that basis issued a very, very narrow opinion," University of North Carolina law professor William Marshall said on a conference call last week.

But conservatives say the opinion shows that Sotomayor and the other judges were trying to covertly establish a precedent that other courts would be bound to follow without explaining their thinking.

"This was in my mind clearly an attempt to do two things: One, rule the way she wanted to rule without having to pay any political consequences for it; and two, adopt a very controversial precedent as binding in the Second Circuit while trying to hide what she was doing," said Curt Levey, executive director of the conservative Committee for Justice.

Senate Republicans have indicated that they will question her closely about her views on affirmative action as well as the hot-button issues like abortion and gun control that judicial nominees typically encounter.

"Those questions are very important because whenever you advance one person affirmatively, you discriminate, in effect, against someone else who maybe had a better position to be hired," Senator Jeff Sessions, the committee's top Republican, said last week.

(Editing by Cynthia Osterman)

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