New woes for Sotomayor

WASHINGTON - The Supreme Court's reversal yesterday of a decision endorsed by Sonia Sotomayor as a federal appeals judge provided fresh ammunition for her conservative critics two weeks before her Senate confirmation hearing, but also allowed defenders to cast her as a judge who respects precedent.

Even a conservative legal expert doubted it would sink her nomination to the top court.

Yesterday's ruling that white New Haven firefighters were unfairly denied promotions because of their race became an instant talking point for foes of Sotomayor.

She was among three appellate judges who had rejected the white firefighters' claim of discrimination.

Conservatives argued that the appellate decision showed her to be a judicial activist who allows biases - particularly her backing of affirmative action policies - to taint her judgment.

Still, yesterday's sharply divided, 5-4, decision was hardly a clear-cut rebuke to Sotomayor.

Her supporters noted that the appeals court decision followed established legal precedents - something conservatives say judges should do. They also pointed out that she did not actually write the appeals court decision and was part of a three-judge panel that rejected the white firefighters' claim of discrimination.

Marge Baker, a lawyer for the liberal People For the American Way, said that in fashioning a new legal standard for such discrimination claims, the Supreme Court's majority in Ricci v. DeStefano took a more radical approach than Sotomayor.

"You either want judges to follow the law or you don't," Baker said. "If you want them to follow the law, you do what Judge Sotomayor and the panel did. If you want judicial activisim . . . you do what the [Supreme Court] did today."

Some faulted Sotomayor for dispensing of the case in a short, pro forma opinion that did not discuss the merits or precedents of the case - a move they argued was calculated to dodge the controversy it raised.

"Her panel wanted to avoid scrutiny . . . and they were called on it," said Tom Fitton of the conservative Judicial Watch.

Sotomayor's allies said the panel's ruling, known as a "per curiam" opinion, was typical of cases where there are clear precedents to guide the court. "It's a political red herring . . . designed to derail or at least impact her nomination," said Dustin McDaniel, the Arkansas attorney general who sided with New Haven in the case.

Conservative legal expert Jonathan Adler, a professor at Case Western Reserve University School of Law in Cleveland, said the result in Ricci isn't likely to lessen Sotomayor's chances of confirmation.

But, he added, "the fact that it took the court nearly 100 pages to resolve this question does cast a shadow over the 2nd Circuit panel's handling of the case, and may raise questions about her judgment."

Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee, said "this case will only raise more questions in the minds of the American people concerning Judge Sotomayor's commitment to treat each individual fairly and not as a member of a group."

Sen. Patrick Leahy (D., Vt.), Judiciary Committee chairman, countered that Sotomayor's panel "did what judges are supposed to do, they followed precedent."

While the National Republican Senatorial Committee swiftly issued a news release attacking first-term Democratic Sen. Michael Bennet of Colorado for backing Sotomayor, Democrats seemed unconcerned about fallout for the nominee or for senators who back her.

"There's little political significance to whatever the court decided today in terms of Judge Sotomayor," said While House spokesman Robert Gibbs. He dismissed the court's decision as a "new interpretation" of federal anti-discrimination law.

Civil rights advocates, such as Baker, went further, denouncing the ruling as a blow against a key element of civil rights statutes that would make it difficult to ensure that employers' standards don't put women and minorities at a disadvantage in landing jobs.