You'd have to have a heart of stone to feel unsympathetic to Frank Ricci. Like his fellow New Haven firefighters, he studied rigorously for the city's promotion exam to lieutenant or captain rank. As a dyslexic, he had to work extra hard with flash cards and a hired tutor. But the city threw out the test and promoted no one. The reason: Too many of the highest-scoring test takers turned out to be white like Ricci.
Firefighters of all races passed the test, but only white and Hispanic firefighters, no blacks, scored high enough to quality for promotion. City officials figured they'd be sued by African-American firefighters if they promoted based on a test that produced racially skewed results. Instead, the city was sued anyway by whites and one Hispanic who claimed they were penalized because of their race.
Up to that point, the case of Ricci v. DeStefano sounds like countless other police and firefighter discrimination cases across the country. What makes this one different is its intersection with Judge Sonia Sotomayor, current Supreme Court nominee.
After a federal district court ruled against the white firefighters, so did a three-judge panel that included Sotomayor on the 2nd U. S. Circuit Court of Appeals. On Monday the Supreme Court overturned the lower courts by a slim 5-to-4, saying the city violated federal civil rights law. That upset gives Sotomayor's critics new ammo, although not much.
It's tough to argue that Sotomayor is outside the mainstream. Justice David Souter, the Republican appointee she is nominated to replace, was one of those who voted to uphold her opinion. A majority of judges on the appeals court also voted earlier to reaffirm the judgment.
But, even though I have been a supporter of Sotomayor's nomination, I think her critics make a legitimate point when they complain that she and her appellate court colleagues have not given the nation enough dirt to sift through in the Ricci case. The appellate court decision runs a mere three paragraphs long. Issues as urgent and volatile as minority hiring cry out for than a perfunctory thumbs-up-or-down response.
That's why I am eager to hear Judge Sotomayor face the questions that surely will come up about the Ricci case during her confirmation hearing, which is scheduled to begin July 13. She doesn't have to talk about pending or possible future cases, but I'd like to know more about how she reached that one.
For the moment, we have Justice Ruth Bader Ginsburg's eloquent view. Writing for the court's four liberals, she offers a more complete defense of Sotomayor's stand than Sotomayor and her colleagues did.
As sympathetic as Ricci and the other white firefighters may be, Ginsburg argues, they are not entitled to promotions merely because they scored higher. No one else has been promoted in their place, she notes, and New Haven delayed the promotions for good cause: The fear of being sued under Title VII of the Civil Rights Act of 1964. It bars hiring tests or other practices that result in a "disparate impact" against minorities, whether that result was intentional or not.
The white firefighters who studied for the exam "understandably attract the court's empathy," Justice Ginsburg said. "But they had no vested right to promotion." Sharp-eared reporters noticed that she used the word "empathy" in reading her opinion from the bench, although her printed dissent said "sympathy." Was that a sly signal of agreement with President Barack Obama's observation that his judicial nominees should have "empathy" for the unfortunate? Only the justice knows.
But let's show empathy some love. There's nothing wrong with judges and justices trying to see the world, however briefly, from the viewpoint of the unfortunate. That includes sympathetic-sounding plaintiffs like Frank Ricci as well as befuddled employers like the city of New Haven. In this case, both sides are looking for guidance and reasonable rules that won't have to be changed in the middle of the game or after tests are already graded.
Justice Anthony Kennedy, writing the court's 5-4 conservative majority, seems to understand that as he struggles to save Title VII from the likes of Justice Antonin Scalia, who thinks Title VII violates the Constitution's equal-protection clause. The city meant well, Kennedy writes, but it needed stronger evidence of racial unfairness before rejecting its test "solely because the higher scoring candidates were white." This is one of those cases in which "statutes and principles point in different directions," he writes, which compels the Supreme Court to referee.
Maybe that was the problem in Sotomayor's appellate court. They simply didn't have enough of guidance to overturn the lower court, so they punted the New Haven dispute to the Supremes. Whatever Sotomayor's thinking might have been, I am eager to hear her explain it.