Many Senators are suggesting Supreme Court nominee Sonia Sotomayor will breeze to an easy confirmation. But others say a case coming out of New Haven, Conn. could trip her up.
The case, Ricci v. DeStefano, involves white and Hispanic firefighters who say they have suffered reverse discrimination.
Among them is New Haven firefighter Matt Marcarelli, who is angry.
"Everyday I go to work I gotta pin this lieutenant's badge on me," Marcarelli said. "It reminds me I got screwed out of a captain's badge because of the color of my skin."
Lieutenant Marcarelli studied hard and got the top score on a promotions exam. But then New Haven noticed of the 118 firefighters taking that test, none of the 28 black firefighters scored high enough to be promoted.
"It looked like the exam might have been discriminatory against some of the minority test takers. And that was certainly a red flag for the city under the law," Victor Bolden, New Haven City Lawyer said.
The black test-takers cried foul.
"Written tests aren't the best way to judge a person on how they will perform their job," Lt. Gary Tinney, New Haven Fire Department said.
But David Rivkin, an attorney in the Reagan and first Bush administrations, said the test was colorblind and all about firefighting.
"The test was completely driven by the imperatives of the firefighting profession," he said. "It had nothing to do with things that would be asymmetrically impacting people of different backgrounds."
Still, fearing the black firefighters would sue, New Haven threw out the test results and promoted no one.
But then one Hispanic and 17 white firefighters sued, saying it was a case of reverse discrimination. They lost their first court battle in 2006, appealed and ended up before Sonia Sotomayor and two other judges on the Second Circuit Court of Appeals in 2007.
The three quickly dismissed the firefighters' claims and their 2,000 pages of court papers and filings with a one paragraph ruling.
"Very cursory. And that frankly to me is more disturbing than even the substance," Rivkin said. "Seemed almost flippant."
"It leads one to think that Judge Sotomayor and her two colleagues who were involved in the case simply wanted to bury the claims of the New Haven firefighters," Wendy Long of the Judicial Confirmation Network said.
The firefighters appealed and this time all 13 members of Sotomayor's federal appeals court heard the case. Six of those 13 judges blasted the one-paragraph opinion, saying it failed to examine any of the relevant law.
The U.S. Supreme Court agreed to hear the case, and when it was argued before them in April, the justices appeared ready to rule against New Haven and give the suing firefighters another chance at the promotions.
"This case really goes to the heart of who we are as Americans," Rivkin said. "Let me just say this: Dr. Martin Luther King would have been amazed to hear that instead of a colorblind America, we have elaborate efforts to advantage and disadvantage people based upon their ethnicity or race."
Many Democrats are saying Sotomayor is a shoe-in come time for her confirmation hearings and Senate vote.
Others warn if the Supreme Court overturns her with this case, that could cast a real shadow over the proceedings, and bring into question her judgment and competence.
"It would be a significant blow," Rivkin said.
*Originally published June 1, 2009