"First Latina Picked for Supreme Court; GOP Faces Delicate Task in Opposition," blared the four-column headline on the front page of the May 27 Washington Post. Leave aside the Post's odd failure to put in the headline the name of the person nominated--itself a nice example of the de-individualizing effect of identity politics. Consider instead the even odder decision to highlight neither the nominee's potential influence on the Court, nor the president who picked her, but the "delicate task" faced by an opposition party powerless to block her.

It was a theme the White House and much of the media (but I repeat myself!) would seek to develop over the next few days: The nomination of Sonia Sotomayor has created a very tricky situation for conservatives, who had best tread softly as they mobilize (if they even dare mobilize), and for Republicans, who had best whisper gently when they raise questions (if they even dare raise questions).

So Obama spokesman Robert Gibbs declared, "I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they've decided to describe different aspects of this impending confirmation." Not just careful, but "exceedingly careful"! Senator Chuck Schumer warned that Republicans "oppose her at their peril." These are pretty heavy-handed attempts at intimidation. One wonders whether a wise Latina woman, with the richness of her experience, might have found a better way to make that point than a hapless white male like Gibbs or Schumer.

However that may be, the White House/media bluster won't work. Most conservatives and Republicans aren't going to be intimidated from raising legitimate questions about Sotomayor's jurisprudence. Especially when such questions have already been raised by nonconservatives as well as conservatives, and about her conduct in an ongoing, important legal case. That case is Ricci v. DeStefano, where Judge Sotomayor sought--by hook and by crook--to uphold a hiring decision that the respected nonideological legal commentator, Stuart Taylor, writing last December, called a "simple injustice," one that many Americans "would see as a raw racial quota."

Here is Taylor's summary of the case:

Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. .  .  . Ricci studied for eight to 13 hours a day to prepare for the combined written and oral exam in 2003 that he hoped would win him a promotion. .  .  . And he got one of the highest scores. But Ricci and other would-be lieutenants and captains with high scores did not get the promotions they expected. The reason was that--because not enough black firefighters had done well enough to be eligible--New Haven decided to discard the test results and make no promotions at all. .  .  . Racial politics clearly did figure in the city's denial of promotions to the white and Hispanic firefighters. .  .  . [T]he Rev. Boise Kimber .  .  . disrupted meetings of the city's civil service board and warned its members of a "political ramification" if they certified the exam results.

Ricci and other test-takers sued. A district judge dismissed the case. A three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed the dismissal, in a process Taylor calls "so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug." One of those three judges was Sonia Sotomayor. The Supreme Court took the appeal, heard oral arguments in April, and should hand down its judgment before its term ends at the beginning of July.

So we will have an unusual moment in the Sotomayor confirmation process--one that will stand out from the customary small-bore senatorial back-and-forth during judicial confirmations. We'll have a high-profile Supreme Court ruling highlighting a very questionable judicial decision by the president's nominee. Most Court observers expect the judgment in which Sotomayor joined to be reversed. But even if it isn't, there will be a closely observed decision by a probably closely divided Supreme Court that will bring home the importance of the Sotomayor nomination for jurisprudence in this area. The public will have occasion to see how a nominee, herself picked for identity-politics reasons, was unempathetic, one might say, and unjust to the victims of identity politics, the firefighters of New Haven who were denied promotions.

Sotomayor will probably be confirmed. But nothing is certain. And a Ricci-focused debate over her confirmation will serve to remind Americans of the unseemliness and injustice of the Constitution-corrupting, identity-politics-driven agenda so dear to the hearts of the modern Democratic party, the Obama administration, and Sonia Sotomayor.

--William Kristol

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