Thread: Firefighters Case Looms Large for Sotomayor

Firefighters Case Looms Large for Sotomayor

Posted:
06/28/09
Filed Under:The Capitolist

When the Supreme Court issues its final rulings of this term on Monday morning, the White House and senators from both parties will be watching most intently for the results of one particular case. That case is Ricci v. DeStefano, a reverse-discrimination case in which 20 firefighters from New Haven, Conn., known as the New Haven 20, are suing the City of New Haven over the civil service test the city administered as a part of the promotion process for the fire department.Although the 20 firefighters excelled on the test, they were never promoted. City officials stopped the process and threw the test results out after learning that the pass rate of African American firefighters was about half that of whites. Of the New Haven 20, 19 are white and one is Latino. At stake in the court's decision Monday are not just the firefighters' promotions, but also the larger question of which actions government can take to benefit one race without harming another. Looming over both those issues is the fate of Sonia Sotomayor's nomination to the high court.

Although her confirmation is still considered all but a foregone conclusion, Sotomayor sat on the three-judge panel in the Second Circuit Court of Appeals that upheld a lower court's decision in favor of the city in the Ricci case. A reversal Monday would give Republican critics an easy opportunity to highlight Sotomayor's 60 percent reversal rate by the Supreme Court, while also providing Senate conservatives a narrative for explaining what they find troubling about Sotomayor's views on ethnicity, race, affirmative action -- and just how far government should go in righting old wrongs.

The case dates to 2003, when Frank Ricci and 117 other firefighters in the New Haven Fire Department took a test as a part of the department's promotion process. Of those, 41 whites, 9 blacks, and 6 Hispanics passed the exam, which included a written and oral section. A union agreement required that that the top-scoring firefighters be promoted first, so 17 whites and two Latinos were slated for promotion to captain or lieutenant. No blacks were in the first group.

The city of New Haven's response was eventually to toss out the test results, thereby negating the promotion list. Frank Ricci and 19 other firefighters -- not all of whom were up for immediate promotion -- sued under the Civil Rights Act, arguing that the city based its decisions on race, not merit, when the law specifically says it is a violation to alter the results of employment tests on the basis of race. (The named defendant, John DeStefano, is the city's mayor.) Ricci, the white firefighter named in the lawsuit, is dyslexic. He paid more than $1,000 for study aids, including paying to have books recorded to audio so that he could better absorb the information.

The city responded that disregarding the results of the test out of concern that it was unfair to blacks is not the same thing as changing the test to benefit them, which would have been against the law. The federal district court found in favor of the city, saying that the city's efforts to make sure that the test was fair to all applicants, including African Americans, was not the equivalent of discriminating against whites. Key to the district court's decision was precedent set by the Second Circuit Court of Appeals when it heard a similar reverse-discrimination case four years earlier.

When Ricci's lawyers appealed the case, the three-judge panel that included Sotomayor agreed with the lower court and issued a short, unsigned statement praising the lower court for its "thorough, thoughtful and well-reasoned opinion." The panel also said, "We are not unsympathetic to the plaintiffs' expression of frustration," but, it added, the city cannot be accused of violations under the Civil Rights Act when it was acting specifically to comply with the Civil Rights Act.

The Ricci plaintiffs appealed the decision to the U.S. Supreme Court, which heard oral arguments in April. Ricci's lawyers argued that "innocent non-minorities, solely because of their race," should not, "shoulder the burden of advancing employment opportunities for minority candidates."

The Supreme Court's decision in this case could affect the use of race as a factor in everything from employment tests to college admissions to government contracting to the shape and makeup of congressional districts. But the hard political impact of the Ricci decision will take little time to reveal itself. Last week, several Republican senators, including Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Judiciary Committee, went to the Senate floor to outline their concerns over Judge Sotomayor's record, with this case high on their list. "The Ricci case is one way the American people could get a window into Judge Sotomayor's judicial philosophy," said Texas Republican Sen. John Cornyn, another member of the committee. "The Court's decision, I believe, will tell us a great deal about whether Judge Sotomayor's philosophy ... is within the judicial mainstream or well outside of it."

Fearing that the Ricci case might be a lightning rod, the White House offered up several legal scholars to discuss it and other Sotomayor cases in the days after her nomination. Martha Minow, a Harvard Law professor, said that, far from revealing a bent for judicial activism, the Ricci case showed Sotomayor's "instinct for judicial restraint." Minow added that while Sotomayor "expressed real sympathy for the plaintiffs, she said they are bound by precedent."

That argument has not won over many Republicans. Speaking of the Ricci case, Sessions raised a question last week on the Senate floor certain to be heard again at Sotomayor's confirmation hearings two weeks from now. "When there is empathy towards one," Sessions said, "is it not prejudice towards the other?"

The Supreme Court may give us its answer to that question Monday.

http://www.politicsdaily.com/2009/06/28 ... -sotomayor

See
Sen. Cornyn's Daily (Legal) Question for Judge Sotomayor:
http://www.alipac.us/ftopict-160859.html