Opinion

Senate should check judge’s stance

Political

Columnist

Connecticut Firefighter Frank Ricci and President Obama’s Supreme Court nominee, Sonia Sotomayor, have never met. But their lives are about to collide.

Six years ago, the city of New Haven, where Ricci works as a fireman, decided to use written exams to decide the 15 promotions available to the rank of captain or lieutenant. The exams were prepared by a company with expertise in such tests, and were verified by independent experts.

A written test put Ricci, who is dyslexic, at a disadvantage. But rather than complain, he spent more than $1,000 on books and had a friend record them on tape so he could prepare for the exam. He took practice tests and interviews, just as any student studying to get into law or business school.

And it paid off. Of the 118 fire fighters who took the test, Ricci came in at No. 6. But none of the promotions went to blacks, who accounted for about 23 percent of the test takers. Protests ensued, pressure mounted on New Haven’s liberal mayor and the city announced that the test would be tossed out. No promotions after all. Nothing was wrong with the exam except the fact that no blacks finished in the top 15.

Mr. Ricci and 19 other firefighters sued. A federal judge ruled against them and so did a three-judge panel on the second circuit court of appeals. But the Supreme Court accepted the case and when the city of New Haven’s lawyer was making his argument, Chief Justice John Roberts quickly cut to the chase. Would the city, asked Roberts, have also thrown out the exam if too many blacks and not enough whites qualified for promotion? The lawyer, admirably keeping a straight face, said yes. The court will hand down its ruling this month in what is turning out to be their most significant civil rights case in years. Most observers think they will rule in favor of Ricci.

What does any of this have to do with Sotomayer?

Judge Sotomayer was on that three-judge panel that ruled against Ricci. But it was how she ruled against him that’s raising eyebrows. Rather than analyze the merits of the case, she and the two others simply accepted the lower court’s ruling in a short, unsigned opinion. In other words, they wanted the case buried. Another judge on the second circuit, Jose Cabranes, protested the actions of Sotomayer and her colleagues in writing, stating, “Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case.”

It was probably Cabranes’ protest that attracted the high court’s attention. Stuart Taylor, former Supreme Court correspondent for the New York Times, wrote that Sotomayer was engaging “in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep quietly under the rug…”

Several years ago, at a speech at Berkeley, Sotomayer questioned whether impartiality in judging “is possible in all, or even, in most cases.” She then said “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” In that same speech she said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

The Constitution and federal civil rights laws are supposed to apply to all of us, regardless of who we are, where we live and what we look like. It appears that Judge Sotomayor doesn’t believe that they apply to Frank Ricci. I wonder why? The Senate should find out before confirming her.

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