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Sotomayor hearings: The Ricci case -- One man’s empathy is another woman’s activism

July 16, 2009 |  7:53 am

“Frank Ricci has a story to tell too,” Sen. Lindsey Graham (R-S.C.) just told Judge Sonia Sotomayor, here for her third day of testimony.

Ricci is the name plaintiff in the now-ubiquitous discrimination lawsuit filed by white firefighters against the city of New Haven, Conn. He will testify here at Hart 216 today and his appearance probably will dominate the news coverage.

The firefighters said New Haven discriminated against them after the city concluded that a promotion test had a discriminatory effect on African American firefighters and threw out the test results. Sotomayor was a member of a three-judge panel that upheld a judgment against the white firefighters. The Supreme Court last month reversed that finding.

He’s being utilized by Republicans in the Senate as a symbol of what they call judicial activism, of overreaching, because they view the decision by Sotomayor’s appeals court panel as result-oriented -- largely because the panel simply adopted the trial court’s analysis of the case without doing its own separate review. The cable news translation has been that Sotomayor has a....

...grudge against them.

Ricci is a dyslexic who by accounts studied eight to 13 hours a day for the test. And one thing Sotomayor has been hammered for is not showing enough "empathy” for him and his fellow firefighters. Witness this exchange Tuesday between Sen. Jeff Sessions (R-Ala.) and Sotomayor:

Sessions: But do you think that Frank Ricci and the other firefighters whose claims you dismissed felt that their arguments and concerns were appropriately understood and acknowledged by such a short opinion from the court?

Sotomayor: We were very sympathetic and expressed your sympathy to the firefighters who challenged the city’s decision, Mr. Ricci and the others. We stood the efforts that they had made in taking the test. We said as much.

Just as Republicans worry that Sotomayor’s speeches show an inclination to favor minority groups, they also are concerned it means she has a blind spot where whites are concerned.

Their interpretation is that the white plaintiffs were denied their day in court because the District Court failed to delve into the real motive the city had in tossing the promotions exam. Sen. John Cornyn (R-Texas) blasted Sotomayor’s failure to demand such a review. This was Sotomayor’s response to him:

The issue before the court was a different one, and the one that the District Court addressed was what decision the decision-makers made, not what people behind the scenes wanted the decision-makers to make, but what they were considering.

And what they were considering was the state of the law at the time and in an attempt to comply with what they believe the law said and what the panel recognized as what the 2nd Circuit precedent said, that they made a choice under that existing law.

The Supreme Court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the -- with the panel. It wasn’t part of the arguments below. That was a decision by the court borrowing from other areas of the law and saying, "We think this would work better in this situation."

The 5-4 Supreme Court majority determined a new and different inquiry should be used in situations faced by New Haven, which was caught between potential discrimination claims from two different sets of firefighters. Sotomayor says that her panel could not have applied that standard, and that it had to follow the precedent of her circuit.

But the Supreme Court is freer to do what it believes is best. As Republicans say about Sotomayor’s panel decision in the New Haven case, Democrats say that decision was “judicial activism.” Republicans say it was an appropriate response to an injustice. We’re not likely to see those two positions reconciled during this hearing.

 -- James Oliphant

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