The Senate Judiciary Committee is getting all sorts of suggested questions from law professors today, ranging from the role of federalism in our constitutional system (from Stanford law prof — and former SCOTUS candidate — Kathleen Sullivan) to whether, given Sotomayor’s interest in diversity, she thinks we’ll have too many Catholics on the court if she is confirmed (the wise non-Latina question of Ann Althouse at the University of Wisconsin).

Georgetown’s Randy Barnett in The Wall Street Journal is already calling these “the Seinfeld hearings” — all about nothing — and suggests senators ask Sotomayor not how she’d decide particular cases, which of course she can’t answer, but instead how she interprets particular clauses of the Constitution and whether the Justices ought to be bound by the original meaning of the text.

All that’s well and good, and surely some of those questions will be asked by serious lawmakers today, but what’s likely to dominate the hearings and the news that comes out of them are the grandstanding statements about comments Sotomayor made decades ago in personal speeches she was asked to give about how her Puerto Rican heritage has influenced her as she rose to great heights in the legal profession.

That may make it less a “show about nothing” and more of a “show trial” staged by Sotomayor’s staunch Republican critics, who will try to choreograph the proceedings to make their point that race and gender ought to be completely irrelevant when it comes to justice, notwithstanding our long history of racial, ethnic and gender discrimination that’s necessitated legislation to combat it.

That clash between the strictly color-blind view espoused by the current Roberts court, and reflected in the majority’s decision in the white firefighters’ lawsuit, Ricci v. DeStefano, and the more liberal view of the dissenters in that case that balances the ultimate goal of a color-blind society with the history of race relations in the United States, is likely what will really be on trial today.

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Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.  So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

“Given that record,” writes Goldstein, “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”

Greenwald writes:

Without a trace of sympathy or even interest in the plight of the plaintiff, Sotomayor methodically recounted the evidence of discrimination and, in as coldly and legalistic a manner as possible, concluded that the Norville ‘produced insufficient evidence at trial to show that the hospital’ discriminated against her.

The Norville case, Greenwald continues, “was one where she acted exactly contrary to the Rove-led disparagement of her jurisprudence — the accusation that she disregards objective legal considerations in favor of emotions and sympathy for what Charles Krauthammer euphemistically described as ‘certain ethnicities.’ ”

My own reading of the case is that she not only didn’t let her sympathies get in the way, but she may have gone too far in ignoring human “emotions and sympathy” to rule based on hyper-technicalities. By “emotions and sympathy,” I don’t mean bias; I mean the fact that discrimination cases are inherently about whether a supervisor made an employment decision based on an emotional, rather than an objective, assessment of an employee. And that requires a judge to let herself empathize at least a little with the situation the case presents.

In the case of Wendy Norville, a 56-year-old black nurse who suffered a spinal injury while working at the Staten Island hospital where she’d been employed for 13 years, the question of whether the hospital refused to reasonably accommodate her disability because of her race, her age, or her disability itself is hardly clear. Yet Judge Sotomayor, writing for a three-judge panel on the Second Circuit Court of Appeals, affirmed the dismissal of her race and age claims on extremely technical, legalistic grounds that would seem to me to have been more appropriate for a jury. (Granted, as a lawyer I worked briefly on employment discrimination cases, so I might be considered biased. But as a former law clerk to a  federal appeals court judge, I saw many of these cases and I doubt I would have recommended coming down the way Sotomayor did on this one.)

Take, for example, Sotomayor’s discussion of Norville’s race discrimination claim, which was based “on her allegation that the hospital refused to accommodate her disability despite having made job accommodations for two disabled white nurses,” as Sotomayor described it.

That’s normally enough to create a prima facie case of discrimination that the hospital would then have to rebut. But here, Sotomayor decided against Norville’s claim failed because Norville failed to show that she was “similarly situated” to the two white nurses. One had terminal cancer and due to the treatment often had to leave work early. The other had a herniated disc — as did Norville — but was promoted to Head Nurse around the time of her injury.

That wasn’t good enough to get her claims to the jury, wrote Sotomayor, because Norville did not provide “evidence regarding the specific degree to which either of these nurses was disabled, the type of work they did prior to becoming disabled, or the ways in which they were limited in performing their jobs. Norville thus has failed to demonstrate that they were ‘subject to the same standards governing performance evaluation’ or that they ‘engaged in conduct similar to [hers].’”

Although I don’t have the full trial record before me, that reasoning seems to place a much greater burden on Norville than she should have had to bear before trial. The fact that the hospital accommodated two other white nurses who had serious disabilities — as Norville did, but was not accommodated — at least seems to create a real question as to whether the reason for the hospital’s action was due to Norville’s race. And it’s the jury’s job to provide the answer.

Sotomayor used similar reasoning to dismiss Norville’s claim of age discrimination, based on the fact that a 38-year old nurse was hired for a position that the hospital could have offered her as a reasonable accommodation for her disability (which, it’s worth emphasizing, was due to an injury sustained on the job).  Even though the hospital gave contradictory reasons for choosing the younger nurse over Norville, and Sotomayor concluded that Norville presented sufficient evidence that she was qualified for the job and that the hospital’s reasoning might be pretextual, strangely, that wasn’t enough to create a question of fact about whether the real reason was age discrimination.  Sotomayor seems to require some direct evidence that the reason for the hospital’s decision was Norville’s age — although given that employers rarely state their discriminatory reasons for their actions, showing pretext is usually sufficient to get the case to the jury to decide what was the real motive.

In fact, it was then-Judge (now Justice) Samuel Alito who, as the lone dissenter in the Third Circuit sex discrimination case of Sheridan v. DuPont, insisted that there ought to be some more direct evidence of the kind of discrimination alleged — an issue that caused considerable controversy during his Supreme Court confirmation hearing.

I know this seems like a long and excessively detailed analysis of one judicial opinion, but I do think it says something about Sonia Sotomayor, which  Greenwald alludes to but many others seem to be overlooking:  Sotomayor’s hyper-technical reading of the law may not always be such a good thing. In Norville’s case, for example, did Sotomayor miss the forest for the trees?

The fact that the jury ultimately awarded Norville $1.6 million for her disability discrimination claim alone — which Sotomayor allowed to go forward based on yet another technical (and correct) reading of the law — suggests that she might have.

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