Contrary to the hopes of conservative critics, Monday's Supreme Court ruling in the New Haven case is likely to deal no more than a glancing blow to Judge Sonia Sotomayor's confirmation prospects.
For one thing, the court was narrowly divided, with four justices basically agreeing with Judge Sotomayor's position — that hardly constitutes a stinging rebuke.
Sotomayor had also been criticized for failing to address the serious constitutional questions raised by this case, in which white firefighters were effectively denied promotions based on their skin color. But the Supreme Court did not address those constitutional questions either. Instead the majority simply held that the city of New Haven had not shown the requisite "strong basis in evidence" that the test where the whites did better than blacks was flawed.
Indeed, Justice Antonin Scalia in his concurring opinion, noted that the high court has yet to settle whether the Constitution's guarantee of equal protection under the laws can coexist with civil rights laws that in some instance permit the racial discrimination against one group to remedy discrimination against another.
Chief Justice John Roberts famously wrote for the court that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race." But that was in a school integration case, not an employment case.
— Brit Hume is the senior political analyst for FOX News Channel.