Tuesday May 26th, 2009 11:28am MST

And Justice for All?

There is no question that Sonia Sotomayor is an impressive woman. She grew up in the projects of the South Bronx. Her father died when she was a little girl. She was raised by a good and decent mother who worked hard and sent her to Catholic school. She got good grades and made it into Princeton, where she graduated with honors. Then it was on to Yale Law. She was a prosecutor in New York City. She was named a federal district judge before moving up to became an appeals court judge. Now she stands as the newest nominee to the highest court in the land.

Only in America!

While there will be debate in the Senate on her judicial philosophy she will win confirmation to the Supreme Court - and she will win easily, probably with about 70 or 75 votes.

That Judge Sotomayor believes judges aren’t there simply to interpret the law will not matter a bit to the Democrats. The Republicans will make some noise, but in the end most will come around. Who wants to vote against such an accomplished woman, and a minority woman at that?

So that remark to law school students that “court of appeals is where policy is made” will be of little consequence. After all, Judge Sotomayor is only saying out loud what most already know: that she’s a liberal activist judge who would legislate from the bench and make no apologies for it.

And then there was that comment at Berkeley about how she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Really? Why?

As troubling as these opinions are, they don’t match up to an opinion she gave in court, in a case involving racial discrimination – a decision that made clear she does in fact think appeals court judges can rightly make policy – and also that she’s prepared to put affirmative action above the law.

The case of Ricci v. DeStefano was brought by 19 white and one Hispanic firefighters in 2003. It claims that the city of New Haven, Conn., engaged in racial discrimination when it tossed out the results of two promotion tests simply because none of the city’s black applicants had passed the tests.

A federal judge, Janet Bond Arterton, ruled for New Haven, saying that there was no racial discrimination since the city, in the end, decided not to promote anyone at all - in order to avoid endless, costly lawsuits by those who didn’t pass and probably to avoid demonstrators chanting “No Justice No Peace” outside City Hall.

But what if some community someplace in America had decided to throw out test results because only black firefighters passed - but no whites did? What if that city said we won’t promote anybody, therefore we’re not discriminating against anybody? We wouldn’t need Oliver Wendell Holmes to make the obvious point: that this would be a clear cut case of racial discrimination.

Why should it be any different when the victims are mostly white firefighters?

The firefighters appealed — and lost again. This time Judge Sotomayor — ruling with the majority – issued an order siding with New Haven city officials, affirming Judge Arterton’s decision. The order came in the form of a simple one-paragraph judgment. It said that Judge Arterton’s ruling was “thorough, thoughtful, and well reasoned.”

That’s it! No explanation as to why Sotomayor and the other judges ruled in favor of New Haven. Sotomayor and the others didn’t bother addressing the constitutional issues brought by the firefighters. They simply ruled that the city got it right; that there was no discrimination in the case.

This is a tough one to swallow. And conservatives, in and out of the Senate, will go at Judge Sotomayor over her decision, as they rightly should. Liberals will look the other way, as they always do in cases involving what some call reverse discrimination. As for President Obama, he said he was looking for a judge with “empathy.” But he obviously wasn’t concerned about empathy for the firefighters who studied hard to pass the test only to be find out the game was rigged.

The case is now before the U.S. Supreme Court.