Stuart Buck makes a compelling and detailed argument that the Senate's rejection of Miguel Estrada's nomination to the DC Circuit meets the test for discrimination.
But disparate impact and "pattern or practice" claims aren't the only types of discrimination claims. Any individual who thinks that he or she was treated differently on account of race can sue for that individual instance of discrimination. And in such lawsuits, the employer cannot get the case dismissed simply by pointing to other racial minorities who haven't been mistreated. See, e.g., Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("The district court found that HCCAA did not "discriminate generally on the basis of sex" because nearly half of its supervisors were women, women were on its Board of Directors, and one of the vacant Field Representatives positions had been held by a woman. Though these statistics may be some evidence of absence of discrimination, especially in a disparate impact case, they do not constitute an adequate basis for a finding of non-discrimination in a disparate treatment case involving a particular instance of failure to promote.").There's lots more; Stuart shows that a similar white nominee received far less scrutiny than Estrada did, and that the explicit words of Estrada opponents make the case that his race motivated their opposition. Go read it.And that's as it should be. There is no rule that an employer is innocent of racial discrimination unless it fired or refused to hire every single racial minority in sight. It's enough to show that discrimination was involved in the plaintiff's individual case. Otherwise, there would be no remedy in situations where the employer discriminated against one or a few individuals but not against everyone.
Of course, anti-discrimination laws don't apply to judicial nominations, but that's not really the point.