New Haven Independent

Her remarks came in response to questioning from Sen. John Cornyn, R-Texas, during the third day of Sotomayor’s Supreme Court nomination hearings. Cornyn was the third Republican to grill the nominee on her role in the Ricci v. DeStefano discrimination suit, in which white and Hispanic New Haven firefighters sued the city for tossing out promotional exam results because African-Americans performed poorly. Sotomayor sat on a three-judge appeals panel that dismissed the case; the Supreme Court overturned that ruling in June.

Eleven New Haven firefighters sat in full uniform in the Senate hearing room Wednesday morning with their attorney, Karen Torre. From prime viewing spots in the third and fourth rows of a limited guest seating area, they listened carefully as the topic quickly turned to the case they’ve been fighting for the past five years.

“I was shocked to see the sort of treatment that the three-page panel that you served on gave to the claims of these firefighters by unpublished summary order,” said Cornyn, the first speaker of the day.

Cornyn noted press reports that the case would likely not have been reviewed “or even caught” by other judges on the second circuit —if Judge Jose Cabranes hadn’t happened to read a comment in a newspaper that Sotomayor and her colleagues had given “short shrift to the firefighters.”

Sotomayor and her two colleagues decided the case through summary order with a one-paragraph explanation, upholding a decision made by New Haven U.S. District Court Judge Janet Bond Arterton to dismiss the case.

When he caught wind of the dismissal, Judge Cabranes chided the three judges for not addressing a central Constitutional question in the case. He wrote that the firefighters’ claims are not addressed by precedent from the Supreme Court or second circuit, and deserved further examination.

“Can you explain why you would deal with it in a way that appears to … avoid the very important claims that the Supreme Court ultimately reversed you on, that were raised by the firefighters’ appeal?” asked Cornyn (pictured).

Sotomayor replied that she couldn’t speak to how Cabranes learned of Ricci, but that she and the other judges in no way hid the case. “When parties are dissatisfied with a panel decision,” she replied, “they can file a petition for rehearing en banc. In fact, that’s what happened in the Ricci case.”

Such petitions are “routinely reviewed” by judges, she said, and so deciding a case by summary order or published opinion “doesn’t hide the parties’ claims from other judges.” Judges also learn of cases when dissatisfied parties file petitions for the case to be heard by the Supreme Court, she said.

“Regardless of how a circuit decided a case, it’s not a question of hiding it from others,” said Sotomayor.

She added that 75 percent of circuit decisions are decided by summary order, “because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.” She said this was exactly the case in Ricci: Arterton issued what she called a thorough, 78-page decision dismissing the case by summary order.

Others have suggested that summary orders are sometimes used as a compromise when judges can’t come to a consensus on the case. Sotomayor didn’t use that defense.

Kimber’s Wrath

Boise Kimber, a prominent New Haven politico, felon and mayoral ally, again emerged in the spotlight as Cornyn continued pressing the judge on the Ricci case.

What about the charge that city officials “worked behind the scenes to sabotage the promotional examinations,” because they knew that if the exams were certified, “the mayor would incur the wrath of the Rev. Boise Kimber and other ranking members of New Haven’s African-American community”? Cornyn asked.

Cornyn said the firefighters suffered hardship, “only to see that hard work and effort disregarded and not even acknowledged in the court’s opinion.”

The senator accused her of failing to look into whether there was a “basis in evidence” to justify the city’s claim that it would face a Title VII lawsuit if it certified the promotional test results because no blacks scored high enough to be immediately promoted.

“Don’t you think the firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claims?” Cornyn asked.

Sotomayor replied that the second circuit court’s opinion issued after discussion en banc “recognized, as I do, the hardship that the firefighters experienced. That’s not being naysayed by anyone.”

The issue before the court, however, was whether the city officials acted under the existing law when they made the decision not to certify the test results, she argued. Sotomayor contended that the second circuit court was bound by precedent on that matter, while the Supreme Court “set a new standard” for interpreting the law.

Past stories on fire department promotions and the Ricci case:

• Is Ricci Being Smeared?
• Sotomayor Speaks On Ricci
• Ricci Takes Center Stage
• Watley: I’d Have Promoted Ricci
• Firebirds, NAACP: Ricci Won’t Stop Us
• “If You Work Hard You Can Succeed In America”
• Was He The Culprit?
• Supreme Court Overturns City On Ricci
• On Page 25, A Hint
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court