The Unexpected Ruling That Nearly Cost Judge Sotomayor Her Supreme Court Nomination

What follows is an excerpt from ' Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge ,' a book where I try to explain life on the bench and the unknown parts of our legal system.

In 2004 the city of New Haven's civil service board threw out promotional exams for firefighters because the black firefighters scored poorly. Eighteen of the high-scoring white firefighters sued, including the lead plaintiff, Frank Ricci, claiming reverse discrimination. Ricci added an emotional kicker to the lawsuit because he was dyslexic and had to study for eight to 13 hours a day to pass the exam.

New Haven argued in the Connecticut federal district court that it had acted in good faith in tossing out the exams, fearing a disparate-impact suit from the minority firefighters.

The white firefighters appealed. Adhering to its precedent, the circuit court, on February 15, 2008, succinctly unanimously affirmed in a short summary order "for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below." As the three-judge panel explained:

In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

One of the judges on the panel was then Circuit Court Judge Sonia Sotomayor.

Applying the circuit court's precedent, as I was obliged to do, I handed down a lengthy decision three months later on May 28, 2008, granting permanent appointments and retroactive seniority to dozens of black, Hispanic, Asian, and/or female New York City school custodians and custodial engineers. The case came to be commonly known as the Brennan case.

Three white custodians had intervened as affected parties, and they appealed. I was confident that just like the Ricci Connecticut firefighters case, the circuit court would summarily affirm. However, a year later, on June 29, 2009, while the appeal was pending in the circuit court, the Supreme Court overruled the appeals court's decision in Ricci, by the barest 5-4 vote. Writing for the majority, Justice Kennedy reasoned that the possibility of a lawsuit from minority firefighters was not a lawful justification for rejecting the test results because the higher scoring candidates were white. "Fear of litigation," Justice Kennedy wrote, "cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."

The new standards articulated by the majority were viewed as making it much harder for employers to discard the results of hiring and promotion tests even if they had a disproportionately negative impact on members of a given racial group. For the dissenters, Justice Ginsburg criticized the majority's decision as undermining a crucial aspect of Title VII. She wrote that "Congress endeavored to promote equal opportunity in fact, and not simply in form," and that "[t]he damage today's decision does to that objective is untold."

When I read the Supreme Court's Ricci decision, I knew right away that my decision in the Brennan case would have to be reversed by the circuit court, but I had to wait for almost two years before the axe would fall. I could not understand why it was taking the circuit judges so long. I found out when, on May 6, 2011, the Court finally handed down its decision. It was 122 pages long. The case would be remanded to me to apply the new heightened standard.

After the Supreme Court came down with its decision in Ricci, my heart went out to Sonia Sotomayor. She had just been nominated to the high court by the President and was scheduled to soon appear before the Senate Judiciary Committee. Those opposed to her confirmation used the occasion to unjustly criticize her because she was one of the three judges who affirmed Judge Arterton's decision. Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, commented that "[e]very citizen has a right to have his or her case heard by a judge who will rule on the laws, the facts, and the Constitution--and not play favorites."

That is exactly what Judge Sotomayor did. She was bound by her court's precedent and--together with the other judges on the panel--applied it. No one had a crystal ball that a 5-4 Supreme Court would adopt a new standard for assessing disparate-impact cases. Fortunately more rational voices prevailed, and Senator Sessions found himself in the minority when the Senate voted to confirm Judge Sotomayor's nomination.

Frederic Block has practiced law for 34 years. He was appointed to the federal district court as a judge in 1994 by President Clinton. Block is the author of Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.