Thursday, July 16, 2009

Joe the Firefighter to Testify at Today's Sotomayor Hearings

Senate Republicans have rebuked "empathy" among judges as if they were Southern ministers commanding Satan to flee. Today, however, they will contradict their anti-empathy stance by bringing Frank Ricci to testify against Supreme Court nominee Judge Sonia Sotomayor.

Ricci Litigation
Ricci filed a lawsuit challenging a 2004 decision by the City of New Haven to scrap the results of a test it used to allocate promotions in the fire department. If the city had certified the test results, virtually all of the promotions would have gone to whites. The city decided to discard the test and to develop other promotions criteria. Expert witnesses testified that other methods exist that could identify employees worthy of promotions in a less discriminatory fashion. The city said that it feared litigation under federal law that considers disparate effects relevant to an antidiscrimination claim and that it wanted to diversify the pool of employees receiving promotions.

The District Court ruled against Ricci in 2006, and a 3-judge panel of the Second Circuit Court of Appeals ruled against him in 2008. Sotomayor was a judge on the panel. The full Second Circuit subsequently voted to deny reargument in the case. The Supreme Court recently reversed the lower court rulings.

Although the issues in this case are important, the opinions do not dramatically alter the legal terrain. Nevertheless, the case and its lead plaintiff -- Ricci -- gained notoriety after President Obama nominated Sotomayor to replace the retiring Justice David Souter. Despite the fact that many judges -- including four justices on the Supreme Court -- have disagreed with Ricci, conservatives who oppose Sotomayor have used this case in an effort to define her as a racial extremist. Today, they will continue advancing this inaccurate script by bringing Ricci to testify.

Ricci's Testimony Is a Colossal Waste of Time
Ricci's testimony will not add anything to the public's knowledge of Sotomayor's qualifications as a judge. Sotomayor has served as a judge for nearly 20 years, and she has decided numerous cases. Only an examination of her complete record as a judge -- rather than one case scrutinized in isolation -- can allow for a balanced and honest assessment of her qualifications.

Although conservatives are attempting to use Ricci (the case and the man) in order to portray Sotomayor as a white-hating race radical, the SCOTUS blog's review of all of the race cases she has decided shows that this label is absolutely false. Sotomayor has rarely dissented in race discrimination cases, and in the bulk of those cases, she has voted against the plaintiffs (constrained, no doubt, by "bad" cases and conservative precedent). In one of her few dissents, however, she actually voted for a white racist employee who was fired from the New York Police Department after he distributed racist literature. Sotomayor, disagreeing with the other two judges, argued that the dismissal violated the employee's First Amendment rights. For obvious reasons, conservatives have treated this case as if it did not exist.

Ricci's testimony will not provide any useful information for many other reasons. First, as a non-lawyer, his competence to evaluate Sotomayor as a jurist is dubious. Second, because Ricci is a disgruntled litigant, many reasonable people will dismiss his analysis as biased. Finally, Ricci only represents one piece of the puzzle. The City of New Haven, the fire department, the workers of color, and potentially the other judges involved in these decisions could all help shape public perception of the case. But (thankfully) these individuals are not testifying. One side of a story is not the story.

Ricci and Empathy
Because Ricci's testimony will not contribute to the public's understanding of Sotomayor's fitness to serve on the Supreme Court, Republicans are undoubtedly using him for political purposes. Republicans are exploiting Ricci to turn Sotomayor's hearings into a mini-referendum on affirmative action and race. Ricci, like Joe the Plumber, represents the "beleaguered white male," held down by evil liberal policies. Republicans hope that Ricci will create "empathy" for conservative opposition to affirmative action and embolden its political base (which increasingly consists only of Frank Riccis). Apparently, Ricci, like Joe the Plumber, savors 5-minutes of political fame. Where exactly is that plumber dude today?

PS: Democrats are trotting out a lawyer who litigated a case before Sotomayor. The lawyer represented the prevailing party. Although a lawyer could potentially bring more to the confirmation hearings than a firefighter, this testimony will probably add very little if anything to the discussion of Sotomayor's record.

For links to all of the Sotomayor articles on Dissenting Justice, see: Sonia Sotomayor on Dissenting Justice


Stray Yellar Dawg? said...

Well, ya know. They the menz on either side of the aisle simply don't want to hear anything from the junior Senator on NY... the state in which Sotomayor has a history.

Ricci is a white guy like them, I suppose. So they will give him all the time he wants to make his point.

And then they'll trot out... whom? Another white guy, no doubt.

The blatancy of isms in this hearing process is so startling that I have to wear sunglasses to watch.

And ear plugs to listen.


Anonymous said...

Ricci's could be an effective tool to bring out and demonstrate the points of the legal technicalities upon which the case was based. To wit, that the City had done nothing for which they should have feared an affirmative action lawsuit, and that they caved to "special interests" when the reality is that if someone like Ricci could succeed, the problem was instead with the efforts put forth by other test takers.

If they use him simply for the sympathy factor, however, it's business as usual.

Darren Lenard Hutchinson said...

Stray: We have been bombarded with so much sexism in the last year, it's hard not to become immune to the discourse.

Anonymous: Ricci does not have any expert knowledge of the "legal technicalities" of the case. He also has no personal knowledge of the city's proferred justification for using affirmative action. Ergo, he is useless in this process -- other than to rally conservatives around affirmative action.

Finally, I will reiterate a point that I made in the article: The city was searching to develop new criteria (remember, THE CITY) developed the original criteria) to distribute promotions. This process need not compromise quality or merit. In fact, the federal statute under which Ricci filed his suit permits parties to challenge employment practices like the test at issue.

These are highly styled legal issues. The appointments process should involve a serious discussion of the arguments -- which the Court opinion already provides. Ricci is speaking to the conservative Republican base, not to the Senators.

Anonymous said...


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