Legal News

Per Curious: The Many Questions Concerning Ricci v. Destefano

By Ashby Jones

A few things nearly certain to happen at Sonia Sotomayor’s confirmation hearings: At least one Republican senator will talk until he or she is red in the face; at least one Democratic senator will do the same. And the nominee will be asked in a variety of ways about empathy, “making policy” from the bench, and the Ricci v. Destefano case.

We’ve touched briefly on the case before, but a WSJ story out Friday delves more deeply into the facts of the case and the thoughts of the participants.

The backstory: Last year, a three judge panel from the Second Circuit, of which Judge Sotomayor was a part, ruled that the city of New Haven, Conn., had the right to reject the results of two tests given to the city’s firefighters to determine who might be eligible for promotions.

A total of 118 applicants took the two tests in late 2003, and 59 earned passing scores. But because there were limited vacancies, only the top scorers were eligible for promotion — a group comprised of 17 whites, and two Hispanics. None of the 27 black firefighters with passing scores was eligible. The city ultimately rejected the results of the test. Firefighters whose scores gave them a good chance at being promoted filed suit.

The case is now pending at the Supreme Court, which is widely expected to reverse the Second Circuit’s decision. Click here for the district court’s ruling; here for the Second Circuit opinion; here for the transcript of the April Supreme Court argument.

Judge Sotomayor will likely be asked not only about the substantive ruling, but about the panel’s decision to issue only a brief “per curiam” decision, which sidestepped a detailed discussion of issues pertaining to race. Wrote Emily Bazelon in Slate earlier this week: “The problem for Sotomayor . . . is why she didn’t grapple with the difficult constitutional issues . . . . Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?”

WaPo columnist Charles Krauthammer on Friday advises Republicans to call Frank Ricci (pictured) — one of the white firefighters denied a promotion — as their first witness. Writes Krauthammer: “Democrats want justice rooted in empathy? Let Ricci tell his story, and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling “facially race-neutral.”‘

According to the WSJ, firefighters in New Haven are bitter. Several men seeking a lieutenant’s job gave up second jobs to devote themselves to studying, said their lieutenant. “They know if they read the books and studied, it means more money in their pockets for the rest of their lives,” said Lieutenant James Blakeslee, a 14-year veteran. “To Sotomayor, it didn’t cost her a dime. It cost these guys a lifetime.”

Full post as published by Law Blog - WSJ.com on May 29, 2009 (boomark / email).