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Opinion: Sotomayor hearings: Raising the Ricci case

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Sen. Jeff Sessions raised the Ricci case.

“You have stated that your background affects the facts you choose to see,” said Sessions. “Was the fact that the New Haven firefighters had been subject to discrimination was one of the facts you chose not to see in this case?”

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Sotomayor: “No sir. I was part of a panel…. In a very similar case, the 6th Circuit approached the same issue in a similar way. We determined the city, facing potential liability under Title 7, could chose not to certify the test if it believed an equally good test could be made with a different impact on affected groups. The Supreme Court -- as is its prerogative in looking at a challenge -- established a new consideration or a new standard. And that is: Was there substantial evidence that they [New Haven] would be held liable under the law? Our panel didn’t look at that issue that way because it wasn’t argued to us in the case before us, and the case before us was based on existing precedence.”

Sessions pressed her about why other cases about racial preferences were not considered in her decision in Ricci. And Sotomayor got a little bit tangled (at least to lay ears) in legalese.

“Because those cases were not at issue in this decision,” replied Sotomayor. Here, she said, this issue was “What’s a city to do when there is proof that its test disparately impacts a particular group? And the Supreme Court decided not on a basis of ‘strict scrutiny’ that what the city did was wrong, but on the basis that the city’s choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards.”

Sessions: “But judge, it wasn’t that simple.”

No kidding.

-- Robin Abcarian

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