After a lengthy dissertation denouncing Democrats for blocking the confirmation of previous Republican nominees, McConnell said that despite his strong belief that the president is entitled to great deference in his choice of Supreme Court justice, the senator would not support this one.

“If empathy is the new standard, then the burden is on any nominee who is chosen on that basis to show a firm commitment to equal justice under the law,” he said. “If nominees aren’t even expected to apply equal justice, we can’t be expected simply to defer to the President — especially if that nominee, as a sitting judge, no less, has repeatedly doubted the ability to adhere to this core principle.”

He continued:

Looked at in this light, Judge Sotomayor’s record of written statements suggests an alarming lack of respect for the notion of equal justice, and therefore, in my view, an insufficient willingness to abide by the judicial oath. This is particularly important when considering someone for the Supreme Court since, if she were confirmed, there would be no higher court to deter or prevent her from injecting into the law the various disconcerting principles that recur throughout her public statements. And for that reason, I will oppose her nomination.

McConnell then went on to criticize Sotomayor’s judicial record, and repeated the mistaken view, expressed by Sen. Jon Kyl (R-Ariz.) at the nomination hearing last week, that the Supreme Court in the discrimination case of Ricci v. DeStefano had unanimously rejected the Second Circuit opinion that Judge Sotomayor had joined.

“I’m referring to the Ricci case, in which a majority of the justices on the Supreme Court rejected Judge Sotomayor’s decision and all of them agreed that her reading of the law was flawed,” he said. “Here was a case in which a group of firefighters who had studied hard and passed a written test for promotion were denied it because not enough minority firefighters had scored as well as they had.”

As I’ve explained before, and as Sen. Dianne Feinstein (D-Calif.) ably pointed out at the hearing last week, the Supreme Court’s decision was 5-4, with four dissenters saying they would have affirmed the Second Circuit opinion.

McConnell’s full statement is here.

Here’s Cornyn, speaking to Sotomayor with a tone of severe disapproval: “You wrote that the law is always in a necessary state of flux. That it’s not a definitive ‘capital L’ law that many would like to think exist. And that the public fails to appreciate the importance of indefiniteness in the law. Can you explain why you think indefiniteness is so important?”

“It’s not that it’s important to the law as much as it is what legal cases are about,” Sotomayor responded in the same patient, methodical tone she’s used throughout her confirmation hearing. “People bring legal cases to the law because they believe precedents don’t clearly answer the factual situation in their case. That’s why they bring cases.  If law was always clear we wouldn’t have judges. Its because there is indefiniteness not in what the law is but its application to new facts that people sometimes feel it’s unpredictable.”

But Cornyn persisted: “You wrote what appears to be an endorsement that judges can change the law,” he said, clearly disturbed by that idea.

Interestingly, when Cornyn criticized Sotomayor for her decision in the reverse discrimination case of Ricci v. DeStefano, and expressed his support for the Supreme Court’s decision, he didn’t mention that the Supreme Court made new law in that case. As Sotomayor explained when Cornyn expressed “shock” that Sotomayor and the other Second Circuit judges gave such “short shrift” to the sympathetic claims of the hardworking white firefighters:

“The Supreme Court in its decision set a new standard for reviewing what an employer is doing — the substantial evidence test,” said Sotomayor. That standard wasn’t addressed by the court of appeals, she said, because it wasn’t even argued to the court by the parties in the case. “That was a new standard created by a decision by the court, borrowing from other areas of the law.”

Cornyn quickly moved on to the next subject.

“All nine of the justices disagreed with your handling of the case,” said Hatch, who sharply criticized Sotomayor’s ruling in the case. “People all over the country have become tired of courts imposing their will against one group or another.”

As I’ve noted before, that claim that nine justices disagreed with Sotomayor in the Ricci case is just blatantly wrong.  Yet interest groups immediately after the case was decided were arguing to the public and the media that even the dissenters in that case disagreed with the opinion of Sotomayor and the two other judges on her 2nd Circuit panel.

In fact, what Justice Ruth Bader Ginsburg wrote in the dissent in that case said merely that IF the Supreme Court were intent on creating a new standard, as it did in the majority opinion, THEN it should send the case back to the 2nd Circuit to apply that new standard.

Sen. Dianne Feinstein (D-Calif.) made sure to correct the point when she began her questioning of Sotomayor.

Sessions repeatedly tried to suggest that Sotomayor had contradicted her promise during her earlier confirmation hearing to the Second Circuit Court of Appeals to uphold the law, including Supreme Court rulings barring racial quotas, by ruling against the firefighters.  But Sotomayor patiently explained that neither quotas nor affirmative action were at issue in the Ricci case. Rather, “the question was what’s a city to do when there’s proof that its test disparately impacts a particular group?” The Supreme Court created a new standard to reach its decision — one that was not even argued to the Second Circuit, she said.

Sessions did not let up, however. “Ricci raised important questions we have got to talk about as a nation,” said Sessions, noting that Judge Jose Cabranes — “also a Hispanic judge on the court”, said Sessions — voted to rehear the case.”You could have agreed with him, but you didn’t,” he said.

And so it went. What’s clear from this morning’s exchange is that just as Sen. Pat Leahy (D-Vt.) and Sotomayor’s other Democratic supporters will toss her softballs to support her nomination, Sessions and his Republican colleagues who oppose this nominee are prepared to give her a very hard time.

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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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Supreme Court of the United States (WDCpix)

Monday’s ruling in the reverse discrimination case of Ricci v. DeStefano was not particularly surprising for the decision itself, which was widely anticipated. As many court-watchers expected, in a 5-4 ruling, the Supreme Court held that, by not relying on a promotional exam on which a group of white firefighters had scored well, the city of New Haven had discriminated against the white men in favor of black and Latino firefighters who had not scored as well on the exams.

Illustration by: Matt Mahurin

Yet conservative groups within hours were putting their own spin on it: A 5-4 decision, they claimed, was really a unanimous ruling by all nine justices against Supreme Court nominee Sonia Sotomayor.

Sotomayor, as one of three judges on the Second Circuit panel that decided the case on appeal, had ruled in favor of the City of New Haven.

“NOT EVEN ONE JUSTICE APPROVED SOTOMAYER IN RICCI CASE,” blared the headline of a statement issued shortly after the decision from Wendy Long, counsel to the Judicial Confirmation Network, a conservative organization that’s strongly opposed Sotomayor.

“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of the U.S. Supreme Court have now confirmed was in error,” said Long.

At a conference call with reporters organized by the conservative Federalist Society, Gail Heriot, a professor at the University of San Diego Law School and commissioner of the United States Commission on Civil Rights, made the same claim: “This was a unanimous decision that the Second Circuit was incorrect. Nobody agreed with Sotomayor. Nobody.”

Roger Clegg, President and General Counsel of the Center for Equal Opportunity, which describes itself as a “think tank devoted exclusively to the promotion of colorblind equal opportunity and racial harmony,” also on the Federalist Society call, added that Sotomayor is “out of sync with even the four liberals on the Supreme Court, including the justice she’d like to replace, Justice Souter,” he said. That “suggests that we have somebody who’s quite out of sync with the right approach to the law in this area.”

Sen. John Cornyn (R-Tx) echoed that in his own statement issued within hours of the decision, praising the majority opinion and saying that “while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed.”

But were they?

Many legal experts don’t think so.

If they’d all agreed, “they would have sent it back,” said Richard Primus, a law professor at the University of Michigan who dismissed the idea that the justices all agreed that the Second Circuit was wrong.

In fact, Justice Ruth Bader Ginsburg specifically wrote that she would have affirmed the lower court rulings in favor of the City of New Haven. “Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity,” she wrote for the four-justice dissent. “Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.”

At one point in the dissent, she does write, in the context of criticizing the majority’s newly-announced rule requiring the city to satisfy a much heavier evidentiary burden to justify its decision than courts had required in the past: “When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance.”

But this was not an implicit criticism of the Second Circuit’s opinion, says Ian Millhiser, legal research analyst for the left-leaning Center for American Progress. “When it creates a new rule, the Supreme Court is supposed to send it back to the trial court to take a look at what should be done in light of this new rule. What Justice Ginsburg is saying in her dissent is if you want to create a new rule, then you shouldn’t decide this case, you should remand it and let the lower court consider the issue.”

Indeed, the majority acknowledges several times in its opinion that the issue has not been decided before.

“This action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue,” Justice Kennedy wrote for the majority.

Kennedy later acknowledges that the court is addressing the issue in order to provide guidance to the lower courts, which previously were left to decide the issue themselves.

“We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them.”

Had the court not changed the rules, however, Justice Ginsburg states clearly that she would have upheld the lower court’s decision that New Haven did not violate the law.

So how did conservatives characterize the decision as a 9-0 slap at Sotomayor?

“Footnote 10 shows that Justice Ginsburg really does agree that the case needed to be remanded,” said Gail Heriot, the University of San Diego law professor and one of three legal experts who participated on the Federalist Society call. Although she admitted that she “had not had a chance to read the opinion” since it had only been issued about an hour and a half earlier, she had read that footnote. It shows the dissent “does not agree with the opinions below,” she said, adding, “this was a unanimous opinion that the courts below were in error. They just disagreed on what that error was.”

Clegg quickly chimed in in agreement. “Absolutely. The justices appear to agree unanimously that at a minimum the case would have to be sent back … that the Second Circuit got it wrong.”

Sen. Charles Schumer (D-NY), who supports Sotomayor, disagrees. “The Supreme Court set forth a new interpretation of Title VII employment discrimination law that provides a different take on the law than had been in place for 28 years,” he said on Monday, on a conference call of his own, organized with another set of legal experts.

“It doesn’t change the argument one wit that Judge Sotomayor follows the law and is judicially modest,” he said. “While the Supreme Court disagreed with the 2nd Circuit they in no way undercut Judge Sotomayor’s ruling that she followed the law and was bound to do so.”

In fact, all judges who have considered this same question have decided it the same way, say legal experts. Not only did all three judges on the Second Circuit panel that ruled in the Ricci case agree that they were bound by precedent to rule the way they did, but the normally conservative Sixth Circuit Court of Appeals, in a similar case, relied on the Second Circuit’s ruling in Ricci. And when the Second Circuit voted on whether the full court should re-hear the case, the majority voted against a re-hearing, suggesting that they agreed with the outcome of the ruling by Judge Sotomayor and her colleagues on the panel.

Before Monday, “case law was pretty settled about what employers were supposed to do,” said Primus, from the University of Michigan. “That’s why all lower courts went the same way until today. The Supreme Court wants to push the bounds more toward the colorblind side,” he said, and the Ricci decison “is clearly a step, it’s clearly a change.”

Legal experts on the left and right will continue to debate whether that change is a good or a bad one. (Groups such as the Center for American Progress, NAACP Legal Defense Fund, People for the American Way and others sharply criticized the decision as undermining the civil rights law’s protections for racial minorities, while organizations such as the Judicial Network and Republicans such as Senator Mitch McConnell profusely praised it.) But there’s little question that it was a change — and an extremely close ruling.

“The court did not suggest that the Second Circuit was outside the mainstream in its ruling,” said Schumer. “It’s the Supreme Court’s prerogative to issue final and new guidance on what the law means. But it’s the second circuit’s role to follow existing precedent.”

“NOT EVEN ONE JUSTICE APPROVED SOTOMAYER IN RICCI CASE,” blares the headline of a statement from Wendy Long, counsel to the Judicial Confirmation Network, on the Supreme Court’s decision.

“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error,” she writes.

Huh?  Today’s ruling, as I noted before, was 5-4. Five justices voted to require the city to present more evidence — what the Supreme Court calls “a strong basis in evidence” — that if the city had not thrown out the results of a promotional exam that had a disparate impact on minorities, then it would have been legally liable to any racial minorities denied promotions who sued under the civil rights law.

Setting aside, for a moment, whether that evidentiary burden makes sense, there’s no question that only five of the nine justices supported it. The other four were just fine with the law the way it was, and believed that the city had presented sufficient evidence to satisfy its decision.

Justice Ruth Bader Ginsburg, writing for the four justices in dissent, questioned the court’s “newly announced strong-basis-in-evidence” standard and recites in painstaking detail the evidence supporting the city’s decision. She went on to note that since the majority is announcing “a new legal rule,” then it should remand the case to allow the lower courts to apply it, since they didn’t have notice before that that’s what the rule was. “[T]he ordinary course is to remand and allow the lower courts to apply the rule in the first instance,” she wrote, chastising the majority for not following that usual course and instead deciding against the city of New Haven.

Within hours after the decision, conservatives had turned this notion that the majority should have remanded the case if it was going to decide a new legal rule into the idea that the four dissenting justices had repudiated Sotomayor and the reasoning of the Second Circuit panel on which she sat.

“This was a unanimous decision that the 2nd circuit was incorrect,” said Gail Heriot, a professor at the University of San Diego School of Law on a conference call organized by the Federalist Society this morning. “Nobody agreed with Sotomayor. Nobody.”

As Long continues in her release:

“Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

“What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.

Well, that’s not how Justice Ginsburg and her co-dissenters see it, as they made clear in this passage:

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.

UPDATE: Sen. John Cornyn (R-Texas) has weighed in with his view of today’s Supreme Court decision in the Ricci case, and — suprise! — he reads the 5-4 decision as a 9-0 against Sotomayor, just like Wendy Long and the Federalist Society lawyers do:

Today’s decision is a victory for evenhanded application of the law. Saying the earlier decision was “antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,” the Supreme Court saw the case for what it is: a “race-based decision” that violates federal law. And while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed. [Emphasis added.]

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As Aaron noted earlier, the Supreme Court this morning decided that the city of New Haven violated the federal civil rights law when it denied white firefighters promotions based in part on their race. That the city was only acting to avoid a lawsuit under the same civil rights law shouldn’t matter, the court ruled in a 5-4 decision.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote in the majority opinion, joined by the usual block of conservative justices — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer, David Souter and John Paul Stevens. Ginsburg wrote that while the white firefighters “understandably attract this court’s sympathy,” they had “no vested right to promotion. Nor have other persons received promotions in preference to them.”

People for the American Way, which supports the Sotomayor nomination, released a statement this morning in anticipation of today’s ruling, saying that the ruling, whatever it would be, “does not reflect upon Sotomayor’s jurisprudence.”

Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.

The Federalist Society has scheduled a conference call with reporters for later this morning, at which point they’re sure to put their own spin on the decision.

Given how close the ruling was, though, it will be hard to say that Sotomayor’s decision in the lower court was either right or wrong, as a legal matter. In fact, Sotomayor was in the majority of her own court in deciding to affirm the district court’s finding that New Haven did not intentionally discriminate against the white firefighters when it tossed out the results of a promotional exam that had a disparate impact on black and Hispanic applicants. That disparate impact could have been the basis for a lawsuit against the city. Whether race was also a factor, in addition to avoiding a lawsuit, is an issue that was never directly addressed or briefed in the lower court, which, as I’ve explained before, is one reason that the full Second Circuit voted against re-hearing the case.

Whether the Supreme Court majority today made new law by deciding the way it did will be the subject of contention for weeks to come.

The case involved charges of reverse discrimination after a test for promotion in the New Haven, Conn., fire department was thrown out when white test-takers performed much better than their black counterparts. Sotomayor upheld New Haven’s decision to dismiss the test results, and her controversial ruling has been frequently discussed in the context of her Supreme Court nomination.

Although that may be because the panel did not issue a long written opinion (which Adam Liptak at The New York Times has reported was because the judges couldn’t all agree on one), opting instead to adopt the reasoning of the district court, Armando Llorens, AKA Big Tent Democrat at TalkLeft, actually bothered to read the concurring opinions among the Second Circuit justices that decided, by a majority vote, not to re-hear the Ricci case after the panel’s ruling.

Llorens finds that in fact, the panel (including Sotomayor) was being extremely conservative (as a matter of judicial philosophy, not politics) in briefly affirming the lower court’s decision. He looks to the reasoning of Calabresi, who pointed out that the white firefighters who claimed to have been denied promotions due to race discrimination failed to make the necessary legal argument supporting that claim in the court below:

In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives.

Cabranes, who conservatives have cited as “chastising” Sotomayor in urging the full Second Circuit court to re-hear the case, thought that the court should have considered whether New Haven had these “mixed motives,” which might have violated the civil rights law. But for the Second Circuit to have undertaken that analysis on its own, when the district court did not, would have been inappropriate — and activist. As Calabresi explained in his concurrence:

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

The emphasis above is supplied by Llorens, who seems to be the only one to pick up on this important point. For the panel to have decided whether New Haven was motivated by a mixed motive would have been an “activist” position to take. And Sotomayor and her colleagues are no activists.

That should please those Republicans who say they don’t like judicial activism. Then again, some conservatives actually like judicial activism — when it’s promoting an ideologically conservative cause.