Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base.
As such, even those that ultimately decided the case for Destefano, like Sotomayor, totally rejected Sotomayor's reasoning for her decision. There can be no greater indictment of her judicial reasoning than that.
Then, yesterday, documents were released by Latino Justice PRLDEF from 1980-1992, the years that Sotomayor served on its board. These documents revealed the group's ties to the radical group ACORN. It also revealed the group's involvement in a lawsuit in favor of a group of Hispanic police officers that challenged the validity of an entrance exam for New York police officer, arguing the exam was discriminatory. This latest revelation, along with her now infamous "wise Latina" comment, and the decision in Ricci form a pattern of an individual that sees the court in racial terms.
Finally, there was this troubling poll from Rasmussen Reports. For the first time, a plurality is now against the nomination. No longer is the narrative about her tremendous life story. Instead, the narrative has shifted to the controversy surrounding the Ricci case and her "wise Latina" comment. The Republicans have effectively defined the nominee. While they may not derail her, the Republicans have done a good job of turning the nomination into a negative for the president. Furthermore, they'll set a marker for the next nominee.
It doesn't appear as though the Republicans will try and orchestrated a filibuster, and the Democrats have more than enough votes to carry the nomination. That said, we have about two weeks until the hearings. Her nomination is losing favor daily. By the time the nomination ends, I have no doubt the nomination will be even less favorable. As such, while Sotomayor may go through, it will be yet another Obama policy that will be viewed unfavorably by the public at large. In fact, by November of 2010, the president will be hard pressed to find any of his policies that will have public support.