On Monday’s Newsroom program, CNN’s Jeffrey Toobin couldn’t find a consistent argument about the Supreme Court’s ruling in favor of New Haven firefighters who accused their city of reverse discrimination. Toobin first reported that Justice Kennedy, “the swing vote in this case, as in so many others,” wrote the decision, but minutes later, he labeled it as a ruling by “the five conservatives on the Court.”
When news of the Court’s decision broke early in the 10 am Eastern hour of the CNN program, anchor Heidi Collins brought on Toobin, the network’s senior legal analyst, to comment on the five to four ruling. He began with a summary: “The Supreme Court- five to four- in a decision by Justice Anthony Kennedy, who is the swing vote in this case, as in so many others, ruled that the New Haven firefighters were the victims of reverse discrimination.”
Collins interrupted in the middle of his explanation, and asked the analyst to give a history of the circumstances of the case. After recounting how the firefighters’ test results were thrown out by the city of New Haven, Toobin brought up how a panel of the Second Circuit Court of Appeals, including Supreme Court nominee Sonia Sotomayor, ruled in favor of the municipality. This is where he revised his earlier labeling of the Court’s ruling majority in the case, which he made only a minute and a half earlier:
TOOBIN: The Court of Appeals argued- said that the city was right to cancel the test, and most significantly, one of the judges on the three-judge panel was Judge Sonia- Sonia Sotomayor-
COLLINS: Yeah-
TOOBIN: Whom President- whom President Obama has nominated to the Supreme Court. Well-
COLLINS: Right, and obviously, there was a lot of question [sic] about that, when we were first hearing her name, and when we then first saw the nomination come- that was one of the things that came up- hey, what's going to happen with this New Haven thing?
TOOBIN: That’s exactly right, and now we know what’s going to happen with the New Haven case. Five justices- the five conservatives on the Court- have overruled the decision that Judge Sonia Sotomayor endorsed- that was her- her decision. So certainly, there will be critics who say that she was overruled by the Supreme Court, but four justices were on her side, including, of course, David Souter, whose last day is today-
COLLINS: Yeah.
TOOBIN: And she endorsed the position that Souter endorsed- but the majority ruled the other way and we also have to see- frankly, we haven’t really- the written opinion hasn’t been released yet- we just have to see how much the Court has cut back on affirmative action-
COLLINS: Yeah.
TOOBIN: Remedies by cities.
Collins then turned to correspondent Kate Boldaun’s live report from the Supreme Court, who read excerpts from Justice Kennedy’s ruling. The anchor followed this by bringing back Toobin to give further analysis. He gave additional spin, this time about the ruling’s impact on the nomination of Sotomayor:
COLLINS: Jeffrey Toobin, if I still have you there- obviously, as we began talking about it before I knew that Kate [Bolduan] had the ruling in her hand- Sonia Sotomayor- this confirmation process- this will definitely come up. It’s another reversal for her.
TOOBIN: No- no question about it- this will be a main focus of the attack against her by conservative senators, who will say that her views are out of step with the Supreme Court. Now, that will be a somewhat-tough argument to make, because it’s- her views are clearly in-step with four justices on the Court, including the justice she will be replacing. So, it’s not like her position was so far out the mainstream on this case that you couldn’t even get a single justice to agree with her- she got four justices to agree with her.
