I have no doubts about whether Sonia Sotomayor will be confirmed for the Supreme Court by the Senate. I do have doubts about her judgment, particularly on the Ricci v. DeStefano firefighter case.

In short, New Haven, Conn., offered a test for promotions to lieutenant and captain. Some firefighters passed the written test, and some didn't - whites, blacks, and Hispanics in both groups. Per city charter and union rules, promotions were to go to those with the highest test scores, combined with results of oral interviews. For captain, some whites and Hispanics qualified. For lieutenant, only some whites made the grade. No blacks scored high enough on the test to be promoted, but some whites and Hispanics didn't qualify either.

After a debate on whether the test discriminated against blacks, New Haven tossed the results, opting to flagrantly discriminate against whites and Hispanics.

Federalist 62, attributed to James Madison, states, "A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained."

I believe New Haven was trying to address the happiness of its firefighters. It tried for a fair promotions process that took into account historic discrimination and the race consciousness and diversity that is part of post-civil-rights-era America.

But it failed in the Federalist 62's second criterion of good government - the means of addressing "the happiness of the people" - by discriminating.

Discriminate based on race, and those targeted will not be happy. What in the 233-year history of this country, or basic knowledge of human nature, would lead anyone to think differently?

It doesn't matter if the discrimination is alleged to be temporary. Doesn't matter if the discrimination is being justified by past wrongs or for a greater good.

What matters is that the person is being treated unfairly - and illegally - because of race: possibly for something that happened long ago, likely for wrongs committed by others.

So because racial discrimination is unjust, because it is wrong, because it does not contribute to anyone's happiness, the Civil Rights Act of 1964 states:

"It shall be an unlawful employment practice for an employer -

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

Though New Haven clearly discriminated based on race, two layers of the federal judiciary - one a three-judge panel that included Sotomayor - missed it. The Supreme Court rightly corrected that error.

Justice Samuel Alito's powerful concurrence to the court's 5-4 ruling states: "The dissent grants that petitioners' situation is 'unfortunate' and that they 'understandably attract this court's sympathy.' But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law - of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them."

Exactly.

That doesn't mean that all is right in the racial universe or that employers can't recognize past wrongs when making decisions. It doesn't give blanket approval to all tests. It most certainly doesn't mean that the contradictory and confusing mine field that is civil-rights law is now easier to follow.

But it does reinforce an appropriate standard for our multiracial democracy: no discrimination based on race. No doubt we'll fall short. But it's a worthy goal, so I hope Justice Ruth Bader Ginsburg is wrong when she says this decision will not long stand.

Affirmative action was not meant as a tool for discrimination. It was intended as a welcome mat, to use Justice John Paul Stevens' phrase in another bias case. The goal was a fair chance, not a guaranteed outcome. The point was to broaden opportunities - not wield a no-trespass sign against whatever group was out of favor at the moment.

Though New Haven acted in good faith initially, it crossed a line when it discriminated against white and Hispanic firefighters. During this week's confirmation hearings, Sotomayor needs to explain how she missed what seems so obvious.

Contact Kevin Ferris at 215-854-5305 or kf@phillynews.com.