She's got some explaining to do.  Is she racist?  Does she discriminate
based on race?  I think she should withdraw.  If this had been a GWB
pick, the dims and their media buddies would be slobbering all over
themselves.  

"Ruling Reverses High-Profile Decision by Supreme Court Nominee Sonia
Sotomayor
By Robert Barnes
Washington Post Staff Writer
Monday, June 29, 2009 12:07 PM

The Supreme Court today narrowly ruled in favor of white firefighters in
New Haven, Conn., who said they were denied promotions because of their
race, reversing a decision by Judge Sonia Sotomayor and others that had
come to play a large role in the consideration of her nomination for the
high court.
The city had thrown out the results of a promotion test because no
African Americans and only two Hispanics would have qualified for
promotions. It said it feared a lawsuit from minorities under federal
laws that said such "disparate impacts" on test results could be used to
show discrimination.
In effect, the court was deciding when avoiding potential discrimination
against one group amounted to actual discrimination against another.
The court's conservative majority said in a 5 to 4 vote that is what
happened in New Haven.
"Fear of litigation alone cannot justify an employer's reliance on race
to the detriment of individuals who passed the examinations and
qualified for promotions," wrote Justice Anthony M. Kennedy.
Justice Ruth Bader Ginsburg wrote for the liberals on the court and said
the decision knocks the pegs from Title VII of the Civil Rights Act.
She read her dissent from the bench for emphasis. "Congress endeavored
to promote equal opportunity in fact, and not simply in form," she said.
"The damage today's decision does to that objective is untold."
On the last day on the bench for retiring Justice David H. Souter, the
court failed to reach a decision on one of its most important cases of
the term: whether a conservative group's production of a 90-minute film
on Hillary Rodham Clinton amounted to a documentary, or merely a long
commercial of the type restricted by the McCain-Feingold campaign
finance reform act.
Instead, the court took the unusual action of scheduling new arguments
on the case for Sept. 9, before the court's new term begins next
October. The court wants new briefings on issues that could lead to the
justices declaring unconstitutional that part of the act, formally
called the Bipartisan Campaign Finance Reform Act of 2002.
The court's decision probably will lead Democrats to push efforts to
have a vote on Sotomayor's confirmation so she can be in place before
the September hearing, although it is unclear whether her replacement of
Souter would affect the outcome of the case.
Senate hearings on her nomination are set to begin in two weeks.
The New Haven case, Ricci v. DeStefano, has become the ruling that
Sotomayor's critics most point to for evidence that she lets her
background influence her decisions, even though her role has been
somewhat inflated.

The promotion test results produced a heated debate in New Haven, and
government lawyers warned the city's civil service board that if it
certified the test results, minority firefighters might have a good case
for claiming discrimination under Title VII. Federal guidelines presume
discrimination when a test has such a disparate impact on minorities.
The board split 2 to 2, which meant the exam was not certified. Those
who opposed using the results said they worried the test must be flawed
in some way that disadvantaged minorities. (The test questions have not
been made public.)
The white firefighters filed suit, saying their rights had been violated
under both the law and the Constitution's protections of due process.
District Judge Janet Bond Arterton dismissed their suit before it went
to trial. She said in her 47-page decision that the city was justified
under the law in junking the test, even if it could not explain its
flaws.
The case then went to the U.S. Court of Appeals for the 2nd Circuit,
where Sotomayor and judges Robert Sack and Rosemary S. Pooler heard the
appeal. Oral arguments lasted an hour, with Sotomayor leading the
questioning, as is her reputation. But instead of issuing a detailed and
signed opinion, the panel said in a brief summary that, although it was
"not unsympathetic" to the plight of the white firefighters, it
unanimously affirmed the lower court's decision for "reasons stated in
the thorough, thoughtful, and well-reasoned opinion."
Kennedy's opinion referred to the judgment of Sotomayor and the other
judges only by noting the short opinion.
Kennedy said the standard for whether an employer may discard a test is
whether there is a strong reason to the employer to believe that the
test is flawed in a way that discriminates against minorities, not just
by looking at the results.
In New Haven's case, "there is no evidence -- let alone the required
strong basis in evidence -- that the tests were flawed because they were
not job-related or because other, equally valid and less discriminatory
tests were available to the city," Kennedy wrote.
The case has drawn considerable attention not just because of
Sotomayor's role but because of the sympathetic nature of the claim
brought by the firefighters, who said they were discriminated against
simply because of the color of their skin.
The lead plaintiff, Frank Ricci, is a veteran firefighter who said in
sworn statements that he spent thousands of dollars in preparation and
studied for months for the exam. Ricci said he is dyslexic, so he had
tapes made of the test materials and listened to them on his commute to
work."