Commentary Magazine


New Haven Firefighters

The story of Frank Ricci will be known to millions of Americans before the confirmation hearing for Sonia Sotormayor is finished. He is the white dyslexic firefighter who doggedly studied for the New Haven firefighter promotion exam, even buying special materials so he could master the information by listening rather than reading. The city threw out his test when seventeen whites and two Hispanics but no African Americans got passing scores.

The district court rejected Ricci’s claim because everyone’s test was tossed, and that meant there was no discrimination. (Yes, tossing the losers’ tests isn’t really “tossing,” but more about that later.) Sotomayor and two colleagues on the Second Circuit gave the claim short shrift and in a paragraph (with no examination of the Constitutional issues) upheld the district court decision. Sotomayor’s colleague Jose Cabranes at the time was clearly displeased that Sotomayor and her two panelists, he said, ”failed to grapple with the questions of exceptional importance raised in this appeal.”

At the Supreme Court, the justices seem to agree:

Justice Antonin Scalia scoffed at the claim that rejecting the results was racially neutral. “It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”

Chief Justice John Roberts, who views with distaste nearly all racially conscious government actions, suggested that the city junked the results because people of the wrong race came out on top. Does the city “get do-overs until it comes out right?” he asked. The court’s four solid conservatives appeared likely to get a fifth vote in Justice Anthony Kennedy, who has found race-conscious programs acceptable only if they don’t target specific individuals.

So what does this mean for Sotomayor? Several things, I think. First, her legal craftsmanship or lack thereof is an issue. Why the cursory opinion? It is not clear whether she missed the big issues or whether she was trying to keep the case from a full review. Neither is a good. Second, what is her conception of equal protection if not the right to be judged equally by the government according to one’s ability? (Does she really think the city was practicing race neutrality?) Third, if empathy is her watchword how did that figure into the case here, if at all? Ricci seems a deserving fellow, at least entitled to an explanation from the court, if not his promotion.

In this one case we see the multiple issues which will be at the center of Sotomayor’s confirmation hearing. And what’s more we have a story that the average American can understand and relate to. The disabled guy worked hard under adverse circumstances and did better than most of his non-disabled peers, only to be told, “Sorry, the ‘numbers’ didn’t come out right.” And this is justice? Most Americans, I suspect, will think not and will want to know why Sotomayor acted as she did.

The mainstream media and some nervous, largely unnamed Republican strategists are suggesting that opposing Sotomayor will be bad politics. But really, which is more politically dangerous: asking hard questions of a lifetime appointee or defending a judge who gave Ricci the boot without so much as a full opinion? We’ll find out this summer.