I see that various supporters of Judge Sotomayor are contending that she’s vindicated by the fact that the district court’s legal reading that she adopted is roughly comparable to the position of the four dissenters in Ricci. (Set aside that even the dissenters say that she applied the wrong legal standard.) But this claim of vindication misunderstands the primary charge against Sotomayor that arises from her handling of the case. As I wrote a month ago:
My core complaint, and the complaint of Judge José Cabranes (a Clinton appointee), about the perfunctory per curiam opinion that Sotomayor and her panel colleagues is not that the result she reached was necessarily the wrong one. I believe that I have been agnostic on that question (though I will point out that even President Obama’s Department of Justice has argued to the Supreme Court that Sotomayor did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.”)
My complaint is instead that Sotomayor engaged in shenanigans designed to bury the claims of the plaintiff firefighters, shenanigans that Judge Cabranes exposed in his blistering dissent from denial of rehearing en banc. Simply put, she didn’t give the firefighters a fair shake, and she seemed to be trying to prevent further review of their claims.
The fact that the Supreme Court majority ruled for the firefighters bolsters concerns that Sotomayor didn’t give them a fair shake—and that the ugly flip side of selective empathy towards certain favored litigants is selective antipathy towards disfavored litigants.