Editorial







Here's a prediction of sorts. When it comes time for U.S. senators to give their floor speeches regarding the nomination of Judge Sonia Sotomayor to replace Justice David Souter on the U.S. Supreme Court, one or more Republicans will say something like this:

"I have no doubt that Judge Sotomayor has the training and qualifications necessary to serve. She's an intelligent woman and an accomplished jurist. And there's no indication she's not a woman of great character. However, when I examine her philosophy, ideology and record, I'm deeply troubled."

No, we don't have a mole among the Republican Senate speechwriters. The words are mostly Barack Obama's. Substitute Samuel Alito for Sotomayor and change the gender of the pronouns, and you've got the explanation then-Senator Obama gave for voting against Alito's nomination to the court three years ago.

President Obama, now the one asking the Senate to consent to his nominee, can expect to see his words thrown back at him.

There will be time to explore Sotomayor's record in more depth, but a comparison with Alito is a reasonable place to start. Just as the most vocal leftwing Supreme Court interest groups sought to brand Alito as a dangerous nominee, their counterparts on the right will try the same with Sotomayor. Most Americans, on the other hand, may observe that like Alito, Sotomayor was anything but a child of privilege who went on to tremendous academic accomplishment at Princeton and Yale before embarking on distinguished service as a prosecutor and federal judge.

Sotomayor, in other words, clearly "has the training and qualifications necessary to serve." Barring an unforeseen revelation, the main question now is a political one, and the Democrats' strength in the Senate suggests a majority of senators won't be "deeply troubled" by Sotomayor's record.

One small piece of that record is already getting a close look, and the attention is likely to ratchet up thanks to a coincidence: One of the cases Souter and his colleagues on the court will decide between now and the end of June is a case that Sotomayor helped decide on the U.S. Court of Appeals for the 2nd Circuit.

The case is called Ricci v. DeStefano, and if by the end of July Americans feel they know Frank Ricci better than they know Sotomayor, her nomination will be in trouble. Ricci is a white New Haven, Conn., firefighter who overcame dyslexia to ace an exam used for promotions. The test results were thrown out, however, because no black firefighters scored well enough to qualify for promotion.

Sotomayor's role in the case is not fully known. Without writing a signed opinion, she was one of three judges on her court to affirm a lower court judge's dismissal of Ricci's lawsuit against the city. Ricci, not surprisingly, claimed his civil rights were violated solely on the basis of his race. The city, perhaps disingenuously, said it was compelled to throw out the test results because it feared a lawsuit from the black firefighters.

From what we know about the case, the first error was made by the original judge, who should have held a trial to decide whether the city was motivated by a good-faith effort to comply with federal civil rights laws. That Sotomayor didn't vote to order such a trial leaves her ripe for criticism, and a reversal by the Supreme Court on the eve of her Senate confirmation hearing could lead to uncomfortable questioning.

Such questions are fair to ask. Presumably by then she'll have an answer ready.