Although Sonia Sotomayor will be taking Justice Souter’s place as a liberal judge on the Supreme Court, Judge Sotomayor is much more extreme.

In 2006, Judge Sotomayor ruled that it was proper for the City of New Haven, Connecticut to throw out firefighter exams that were the criteria for promotion.  The reason?  There were no black firemen eligible for promotion based on the test results.  White and Hispanic firemen who passed the exam sued to reinstate the exam as the promotion criteria.

While I do not doubt that affirmative action has been and can continue to be an effective vehicle for justice, its rationale and implementation require constant monitoring.  At a time when the nation is re-examining and tempering the use of affirmative action, Judge Sotomayor favors expanding affirmative action in two extreme ways:

• (1) Judge Sotomayor favors hiring the lesser qualified applicant when lives depend directly on the knowledge and capability of the applicant.

Expert witness Vincent Lewis noted that the test included questions about proper use of fire equipment and that examiners should know that information.  Ricci v. DeStefano 554 F.Supp.2d 142, 149(2006). However, Judge Sotomayor prefers that skin color, rather than competency be the test in life or death situations like firefighting.  Her affirmative action ideology runs so deep that she favors risking property damage and deaths in the community in order to implement affirmative action. 

• (2) Judge Sotomayor believes in retro-active Affirmative Action

It is unconscionable that an organization hold out a test as the criteria for selection and then retract that test after the results are determined to be undesirable.  The facts of the Ricci show that the candidates invested significant time and money into preparing for the test.  In fact reasonable people would be justified in basing their career path on their chances of being promoted on the basis of their test score.  Destroying a person’s reasonable expectation does not comport with American values of fair play and substantial justice.  By contrast, traditional affirmative action in universities is known and expected before the investment is made.