Obama's Election Shows that Affirmative Action's Day Has Passed

But if you really want to understand the mendacious thicket we have reached regarding race, wade into the New Haven, Conn., firefighter case. When Sotomayor's confirmation hearings are held, I promise you will hear about it.

The New Haven city government wanted to promote black firemen. It administered a test designed to do so. But white applicants did better than blacks. So New Haven, afraid it would be sued by the black candidates, tossed out the results. Instead, 19 white candidates, joined by a Hispanic candidate, sued. New Haven was in "a damned if you do, damned if you don't situation," Justice David Souter said when the case was argued before the Supreme Court.

The federal district court sided with the city, and Sotomayor and her colleagues at the appellate level endorsed the decision. But given the tenor of the justices' questions when the case was argued before the Supreme Court, the white and Hispanic firefighters are now thought likely to prevail. (Sotomayor has been roundly criticized as a quota-loving liberal for her role in this case, it not having occurred to critics that she may have displayed admirable objectivity when voting against the Hispanic plaintiff.)

The Supreme Court would do us all a favor by going beyond the limited facts in the New Haven case and making a strong statement to free us from such haggling.

Chief Justice John Roberts said it well two years ago: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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