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Robert Farley
By Robert Farley June 1, 2009

McConnell claims Department of Justice disagreed with Sotomayor in Ricci firefighter case

Judge Sonia Sotomayor's ruling in a case involving a group of New Haven, Conn., firefighters continues to be the most talked about of the Supreme Court nominee's past cases.

Sen. Mitch McConnell sought to make Sotomayor's opinion look out of the mainstream by telling CNN that the Obama administration's Justice Department had disagreed. We find the truth is not so simple.

First, a quick explanation of the case:

Ricci vs. DeStefano involves a group of mostly white firefighters who claimed reverse discrimination after the city threw out the results of promotional exams because white firefighters fared significantly better than black firefighters. If accepted, the test would have resulted in no black firefighters being eligible for promotion. The New Haven Civil Service Board said it was concerned the test may have violated "anti-disparate-impact requirements" of Title VII of the  Civil Rights Act of 1964, and that the city would face an employment discrimination lawsuit from nonwhite applicants who were not promoted. So the board decided not to certify the exam results, and no one was promoted.

Eighteen firefighters — 17 whites and one Hispanic — filed a lawsuit against the city claiming the decision not to certify the exam results "amounted to intentional discrimination" against the white firefighters in favor of black firefighters due to their race and political support for the mayor, John DeStefano.

A federal district court judge who heard the case ruled in favor of the city, saying the city had the right to throw out the exams. The firefighters appealed to the 2nd Circuit, the court on which Sotomayor sits, and Sotomayor was part of a three-judge panel that upheld the district court decision.

Now the case is being considered by the U.S. Supreme Court.

On CNN's "State of the Union" program on May 31, 2009, McConnell, the Senate's Republican leader, was asked what troubled him most about the case.

McConnell said he had not yet read the case but "the Department of Justice, under the Obama administration, disagrees with the decision" Judge Sotomayor made.

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We have previously dissected some of the legal issues of this case, so here we are examining whether the U.S. Justice Department disagreed with Sotomayor's decision.

In February 2009, the U.S. Justice Department did, in fact, enter a "friend of the court" brief asking the Supreme Court to vacate the appeals court ruling and "remand" the case back to the district court for further consideration of some issues.

But that doesn't mean they asked the Supreme Court to reverse the appeals court decision and rule in favor of the firefighters.

In fact, the Justice Department brief backed up many of the arguments made by the district court judge that were later affirmed by Sotomayor's appeals court. In one of the central issues of the case, the Justice Department attorneys argued an employer does not violate discrimination laws "when it decides not to certify the results of a promotional test in order to comply with the statute’s disparate-impact prohibition."

"Nor is declining to certify test results the equivalent of 'racial balancing' or imposing 'quotas,'" the brief stated.

However, the Justice Department argued that the district and appeals court failed to "adequately consider" whether the city was hiding behind a civil rights argument, using it as a pretext for "intentional racial discrimination" against white employees.

In oral arguments before the Supreme Court on April 22, 2009, Edwin S. Kneedler, deputy solicitor general for the Justice Department, said that, in particular, the district court ought to look further into whether the city's decision to throw out the test was motivated by such factors as wanting to promote minority role models.

As for McConnell's statement that the Justice Department "disagrees" with Sotomayor's decision, we don't think that's accurate.

The Justice Department largely supports the legal arguments that underpinned the district court position in favor of the city, and which were later incorporated by the appeals court. But ultimately, the Justice Department asked the Supreme Court to send the case back to the lower court to reconsider some issues. And so we rule McConnell's statement Half True.

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