A Single-Issue Confirmation Vote for Sotomayor?
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THIS IS MORE THAN A SPEED-BUMP FOR THE SOTOMAYOR NOMINATION
IS PAYBACK COMING?
SCOTUS, in a 5-4 decision has ruled against pro-minority discrimination, reversing a lower-court decision (in which Ms. Sotomayor is on the now losing side) that voided a race-neutral competitive promotional examination for firefighters because an insufficient number of minorities made it to the top. There was no evidence of actual invidious discrimination.
Here is today's AP report:
"New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
"The ruling could give Sotomayor's critics fresh ammunition two weeks before her Senate confirmation hearing. Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents."
Whatever the nominee now says, her appointment to the Supreme Court will be understood by all observers to represent a decisive vote against race-neutral employment decisions whenever they adversely impact a minority group.
Never before in my memory has a nominee been so clearly and unambiguously trapped on one side of a contested issue before Senate confirmation.
Make no mistake: Not just conservatives are concerned about this issue. Many liberals are now prepared to move beyond the race-based "counter-discrimination" policies of the 70's and 80's. And many centrists thought (mistakenly it now appears) that Mr. Obama's election would represent a breath of fresh air on the race issue, a return to less race conscious public policies.
Ms. Sotomayor's proponents will counter that she will recuse herself on the pending case (since Justice Souter whom she would replace retires before the case has been finally resolved). That would be unconvincing as would her own protestations that she "hasn't really determined the issue" from the fresh perspective of an Associate Justice of SCOTUS.
In the absence of any other ammunition against her, Judge Sotomayor will probably be confirmed. But one more wedge issue will have arisen within the now-fragmenting Obama coalition. Democratic Senators pressured to swallow reservations and confirm this nominee will not forget the experience. There will be payback....
JBG
