WASHINGTON - The critics of Supreme Court nominee Sonia Sotomayor have called her an activist and criticized her for using “empathy” to judge cases.

But who was activist and empathetic when the Supreme Court this week overturned by a 5-4 vote the ruling she and two other appeals court judges made in a case of white Connecticut firefighters suing over racial preference allegations?

The court noted that the prime petitioner was Frank Ricci, a dyslexic white man who spent $1,000 on study materials and hired a neighbor to read them to him, and who was denied promotion when the city of New Haven threw out a test because no black applicants qualified.

And in the case, Ricci et. al. vs. DeStefano et. al, Sotomayor’s defenders pointed out that she actually ruled to uphold federal anti-discrimination law and precedent.

Bottom line: The five most consistently conservative judges on the nation’s highest bench created new precedent.

These are worthy notations for the debate over Sotomayor’s nomination about to commence in the U.S. Senate. One critic’s empathy is another’s fairness. One observer’s strict interpretation of the law is another’s activism.

After the Ricci decision was announced, a coalition of right-leaning lawyers and activists, including former Reagan Attorney General Edwin Meese, said it proved Sotomayor used empathy selectively when she judged cases, and that the decision “calls into question whether Sotomayor is capable of treating all Americans fairly and equally.”

“The now-reversed lower court opinion was engineered to favor a certain class of minority - in this case black applicants - who had scored below the threshold necessary to be considered for promotion,” the group said in a statement. “The result was unfair discrimination against white and Hispanic firefighters who scored above that threshold.”

But others said the decision was activism that damaged equal opportunity.

The court “restricted employers’ ability to take common sense actions to avoid unfair practices in the workplace,” said Debra L. Ness, president of the left-leaning National Partnership for Women & Families. The liberal Center for American Progress Action Fund called the decision, “the new activism,” and said the lower appeals court actually was upholding a 1984 decision similar to Ricci that gave employers “sweeping authority to reconsider a promotion test when minorities underperform white applicants.”

Barring any major revelations, Sotomayor’s nomination appears certain, especially with former comedian Al Franken about to bring the Democrats to a filibuster-proof 60-vote threshold in the Senate. But the sound and fury before the vote could get interesting, especially as part of a broader debate over the characteristics judges should have in a checks-and-balances government.

Sotomayor’s critics will point out that she was rebuked on one of the most important rulings of this Supreme Court’s term.

She opened herself to criticism by joining a single-paragraph judgment confirming New Haven’s decision to throw out a test because no black applicants scored well enough to qualify for promotion. Her critics said it was scant treatment of an important issue.

Justice Anthony Kennedy, writing for the five justices in the majority, took 34 pages to overturn it. He took a subtle swipe at the “one-paragraph” opinion of Sotomayor and two other appeals court judges that joined with her. Even Supreme Court Justice Ruth Bader Ginsburg, who wrote for the dissenting four, suggested in a footnote that the lower courts had focused on New Haven officials’ intent rather than on whether they had a good cause to do what they did, amplifying criticism about the way Sotomayor handled the ruling.

Ginsburg also couldn’t resist a nod to the empathy debate. She began the second paragraph of her lengthy dissent by asserting: “The white firefighters who scored high on New Haven’s promotional exams understandably attract this court’s sympathy. But they had no vested right to promotion.”