that is probably what she will say at the hearing. this was a new test, so she could not have arrived at the conclusion. host: that is one of the themes from the editorials this from the editorials this morning, including . . he lower court. explain what that would have meant. guest: the court looked at the fact of why this city tossed out these firefighters promotional exams to the district court applied title 7 of the civ- rights act. court of appeals had done the same thing. they were very early stages. there was not a factual record. i think the "washington post" editorial may be simply that my colleague made last night. that is, it's way too early for

the supreme court to jump in and get involved in this litigation. it is too early to use this as an occasion to announce a new test. a test that had never been invented before. there was a feeling that it was very premature. is really would have been better for everyone concerned if the court had done what they usually do when they announce a brand new rule, which is remanded back to the courts. ok, we have created a new standard. now look at it again and apply the new standard. that did not happen. that is one of the things that justice ruth spader against rick -- bader ginsburg was upset about. host: let me read to you a part of what "the washington post"

said this morning. host: w so? guest: there's a feeling that the white firefighters and the one latino who brought the title 7. did not have the ability to make a claim that they had been harmed. they need to be a will to say that because you threw out the test results, we did not get something. what they did not get was the possibility of maybe being promoted. it was not as if it was a foregone conclusion. they suffered no real harm. one of the things that some of the papers are arguing is that something bad knees to happen

before you get relief from the court. here, they just were not at the point where something had harmed them so they could go into a courtroom and seek relief. there was a sense that if the litigation had been allowed to proceed, had they acted in some way, this would have been a much better stage of the litigation for the court to step in. host: whether it is this decision, the retirement of david souter, the nomination of sonia sotomayor, our guest is dahlia lithwick of "slate magazine." george will points out that --

guest: one of the really interesting back stories in this case, and you see it. justice alito wrote a concurrence. he makes this same point. this was not a legal fight. this was not the city acting in good faith. this was the city belling to small-town politics.

i think that's one of the threads that he is pulling from the alito concurrence. justice ginsburg -- justice kennedy wrote the main 5-4 decision. alito jump in because ginsburg had all the facts wrong. her dissent said i'm jumping and in the sense because they're not telling all of the facts. this is a strange situation where ginsburg and alito are really going at it. ginsburg's response was so what -- that is not a legal question. as a legal matter, the city had an obligation to toss the results of this exam if the disparate impact was such.

that was just a lot. that was the affirmative mandate. her point was all the other stuff is very interesting and it makes for a good novel, but it is not the central legal issue. the central legal issue is that the law requires we tossed the big exam if it has a disparate impact on african americans. the city did that. the court said that is what the law requires. the court of appeals of which sonia sotomayor was sitting on, that as well the law requires. it was the supreme court that did something activist when they announced a new test. host: robert burns has a story in "the washington post." and this twitter comments from bbkey. can you comment?

guest: it is huge news and it will possibly detonate some of the demise of the mccain fine golengold. roberts and illegal have never been willing to go as far ias te other three conservatives on the cord. -- on the court. this is a movie that came out from citizens united. it was a 90 minute film, "hillary: the movie." it was quite incendiary and unflattering. i do not think anybody thought this was "60 minutes" episode. they got tagged for what is called electioneering communications. that means, we're using corporate funds to tell you do not vote for hillary.

the statue has always been applied to go after things like a swift vote ads. the question -- the oral argument. citizens united said this was core political speech and it should not be regulated under this. the reason that twitter, and said why is this a big deal -- the court said, we're going to hear this case again in september and we will have the parties argue the question of whether regulating corporate speech under a case called austin is unconstitutional. this shows a willingness for alito and roberts to at least think about what they have not been willing to do, which is to take a whack at mccain-fien

gold. host: this is a rare september oral argument. what happens if sonia sotomayor does not get approved by the full set? -- by the full senate? guest: it is a great question. if we cannot agree to get started by july 13, the confirmation hearing gets bumped to september. democrats are using this as a reason to say, let's get her confirmed. the answer to the question of what her views will be on this, i do not think it will be that different from justice souter. we do not know that much. host: would it be possible for justice souter to come back on this case? >guest: people have asked that question. i do not think so. i thin he made it very clear in

his statement yesterday that he is done. probably the most pragmatic thing would be to reschedule the argument for later. i think democrats are fairly confident that the sonia sotomayor hearings will happen in july. host: good morning. caller: she just took the steam, two of my question. i was calling to ask if she thought that maybe the supreme court was becoming an active thiactivist court in the racial discrimination case. one of the things your guest just said -- she said the law was created -- the city had to follow the law that if there was an impact on african-americans.

what does that law really mean? i am african-american myself and i would not want that. host: thank you. we voted response from dahlia lithwick. gucaller: title 7 of the civil rights act of 1974 just says discrimination on the basis of race. built into that question is the nut of the conflicts in this case. what does it mean to discriminate on the basis of race? is it not in conflict with the civil rights act which says do not discriminate on the basis of race if you are discriminating against white guys? it's a good point. if you pitch the results of a promotional exams because only white guys did well, is that not as egregious under title 7 as

pitching the results because only black guys did well? the court describes this as a collision course of two different views of what the civil rights act should do. for one says that they should all be remedial and they should of course street discrimination against african americans as different from discrimination against a white firefighter. this is something that is pervasive. this has gone on for years. the court goes out of its way to say that firefighters and police were the most segregated and really agree to sleeegregiouslyd african-americans for years. police and firefighters were not getting the job done. there is an argument that the liberals make on this side. of course it is different to discriminate against white

people than it is to discriminate against black people. there is this collision of two views. we are meant to be color blind or we're meant to be remedial. that collision course needed to be reversed. it seems to me that a lot of people are going to say that if the supreme court of health is a bread to do test that requires "a strong base of evidence -- requires a test that will require "a strong base of evidence" then of course that is an activist move. that is the court legislating from the bench. i do not really like the word activist. i think it obscures' more than it clarifies. there are six different

plausible definitions of activism. we can flip it and say that whatever sonia sotomayor was on the second circuit, it was not activism. she was applying the civil rights act asbestos she knew how. -- she was applying the civil rights act as best as she knew how. host: our guests, dahlia lithwick, is a lawyer and a graduate of yale university. another point of view expressed this morning in "the washington times." they write that the firefighters play by the rules. they did what was asked of them to advance their careers and provide for their families. they prepared, they studied, and they excelled. in judge sonia sotomayor's america, people are just by the color of their skin, not the content of their character, says

"bill washington times." -- says "the washington times." we showed you open code the washington post" earlier. charles is on the phone from richmond. caller: i agree with you to a certain degree, but the supreme court was an activist court. they tried to make a new law. they did i have always supported judge sotomayer. it was three judges. what she did was to apply the

law as it was written, and it was sentenced to supreme court, and they looked added back and said, what you should do is we look -- re dashlook at the situation, because -- relook of the situation because much of it was a multiple choice. it is not what you would call it a good test to be a fireman. one man was dyslexic, which is disturbing to me. host: thank you. guest: he makes a bunch of good points, and i agree with everything he says. one thing we could pull out of his comment about dyslexia and editorial you just read is that this was an incredibly simple.

the city of new haven made the biggest mistake messing with frank. this was a dyslexic guy. he used his own money to study and prepare for this test. you cannot look at him and say that he did not deserve it. he really, really did. one of the things that is really fascinating -- i mentioned this before. one of the things that happened -- ginsburg makes this point in her dissent. she said, he is a totally sympathetic character. no one takes that away from him. that language that was used by the three judges on the second circuit said, in their opinion, they felt sorry for the guy. justice alito went out of his way to really put an elbow in that.

and he said, justice ginsburg said he deserves sympathy. the law is not about sympathy. the law is about fairness and justice. it is a very pointed and sharp conclusion. i just want to point out that the chief justice -- there's a reason they do not sign on to one another's concurring opinions. the chief justice did not sign onto alito's opinions. do not forget that president obama has trotted out this work into the -- trotted out to this word empathy. we have talked about that word for weeks, making ourselves crazy about what it could possibly mean. one of the very interesting things yesterday was this use of

the word by ginsburg that say the fact -- this sympathy goes out to the sky. he seems like a great guy. i feel bad that he did not get what he wanted, but that is not the law. and here is alito who said, sympathy has nothing to do with it. look at this as framing some of obama's conversation that we're having about sonia sotomayor. host: the editorial cartoon in "the washington times" yester day. next to the firefighter is judge sonia sotomayor with the gasoline used to put out the fire. caller: one of the things that gets a little lost in this discussion is that we are

having this discussion about sonia sotomayor as though she single-handedly made this decision. she did not. the court ruled originally. she upheld it. the entire second circuit denied re-hearing on this. i think the reason she is being singled out for this race prism is because she is hispanic. we need to be careful asking ourselves if a white guy who had issued to this decision were now up for supreme court confirmation, would we be imputing all this racism, reverse racism, racialism, and all these words we keep hearing, or is that something she is getting tagged with simply because she is hispanic?

i want to add to that. there was a hispanic man who brought suits, too. if you're going to argue that she puts a thumb on the scale for whites and latinos, she did not do that on this case. she voted against them. it is really helpful to unpad how much of this conversation -- because she is hispanic, she must favor minorities. i think if she was a white guy, we would not be having this acute conversation about her extreme preference for minorities over whites. host: usa today headline this morning -- selena is joining us from

california. caller: i do not understand what the republican trouble is with judge sonia sotomayor. they voted for her in the lower circuits. they voted with president bush and then with bill clinton. all of the sudden, barack obama printer in, and did bring up -- barack obama brings her in , i think it is a pretty good statistic. i do not care what color you are. host: do you think the stakes are different when you're talking about a lower position versus the? supreme? caller: no, the qualification still has to be there. we are calling her stupid and she was second at prisoprinceto.

host: dahlia lithwick? caller: i agree. this is a judge was 17 years of judicial experience. she is the most qualified person to be tapped for the supreme court in 100 years if you look at judicial experience. if you look at her record, as i have been doing, there is not a lot to be alarmed by. progressives will say there is not that much to be cheered by. she is an incredible, moderate, careful, scrupulous, slightly boring, hospital corners judge who sticks to their records and sticks to the facts. she reminds me, more than anyone, of david souter. she has a great reverence for the statute before her. in many cases, with the option to go beyond what was at issue, and make proclamations about what the law should the -- she

is just not inclined that way. this really is to the extent that republicans want somebody who is humble, who is a minimalist, who is a strict constructionist, she is kind of it. she is not that different from what john roberts promised to be. that is, just an empumpire. what we're talking about does not have much to do with her qualifications or the enormous quantity of decisions that is the data we can look at. instead, we're having this weird meta conversation about three words, "wise latino womea women" the below blac-- blow back is

political and ideological. host: if you're listening on c- span radio, our guest is dahlia lithwick. she joins us from charlottesville, virginia. talking about yesterday's supreme court decision, the nomination sonia sotomayor sonia, and the retirement of david souter. kay is on the phone from las vegas. caller: i have that as a firefighter in madison, wisconsin and the interest of the of the dynamics of how the court rules. they're not told what manuals to read. in the court transcripts, anybody who went up for the test, they were told what manual to read, what book to read. they were not going in blind. they have the information. they have the tools.

it was their choice on how well they wanted to study and how bad they wanted the promotion. i am married to a military personnel. they test all the time for their ranks. they know what they have to do to make that rank. host: thank you for the call. let me take a follow up twittered commen comment. caller: the answer to the twitter question -- they have to meet some new standard. it is not clear what the standard is. justice kennedy's language is that there has to be a strong basis in evidence for making the promotional decisions. it will not be good enough for city fire fighting departments to say we just have a feeling

that this test has a disparate impact on one race or another. that will not be good enough. that is the floor. legal scholars are all sitting there hair on fire today to try to figure out what that means practically speaking. one practical effect will be that cities will have to get more facts behind them into a better job of showing that there is a disparate impact, which is legal under title 7. you can try to remedy that. a lot of cities will simply do away with these. 60% of the test is a written test. there are other better methods for testing and promoting. they may go to less controversial methods. i think the answer to her question -- shouldn't you just have to study hard and do well? that is not what the law provides.

right or wrong, the disparate impact of title 7 -- this was codified in 1991. it says if there are massive fleet discriminatory effects, if the test precludes african- americans or what ever group from doing well enough to be promoted, then the test is suspect. there's this question of burden shifting. that's just the law. one of the things that was the question is whether the court was going to gut that standard. there's still a place to bring a disparate impact flame going forward. it is going to be much harder. host: this is from "the new york post" this morning -- quote from jeff sessions, "this

will only raise more questions concerning sonia sotomayor's commitment to treat each person fairly and not as a member of a group." paul is on the phone from tennessee. caller: i have a question. it seems like we have conservatives picking these judges, and the liberals say this guy for this lady will be good enough, and the liberals are the same way with the conservative picks. it is like we have a group of kids playing kick the can down the road. as far as the racial thing, it always seems like the democrats -- the democratic party are always the first ones to screen ouam foul. when it comes to the opposite side, there the first ones to say