New Haven Independent

This time, two Democrats swung back.

Ricci v. DeStefano, the reverse discrimination suit filed by white and Hispanic New Haven firefighters, took center stage immediately as the hearings before the Senate Judiciary Committee resumed Thursday morning. Sen. Jon Kyl, R-Arizona, spent nearly 20 minutes pounding Sotomayor on the topic. The morning’s back-and-forth lended a sneak preview to the afternoon’s attraction: The Republicans are set to bring out two plaintiffs in the case, New Haven firefighters Frank Ricci and Lt. Ben Vargas, to testify against the judge.

In heated questions, Kyl sought to shoot down Sotomayor’s defense of her role in the case — that she was merely following precedent when she joined two appellate judges in upholding a U.S. District Court’s decision to dismiss the case. The Supreme Court overturned that ruling in June by a 5-4 decision. Sotomayor previously cited Supreme Court and second-circuit court precedent to defend her panel’s decision; she also said the Supreme Court chose to take the law in a new direction.

“I’ve carefully reviewed the [Supreme Court] decision, and I think the reality is different,” said Kyl. He said there was no Supreme Court precedent about throwing out test results because its racial results would violate civil rights laws. He contended that all nine justices agreed there were “few if any” cases of precedent addressing the question, he said.

“Isn’t it true that you were incorrect in your earlier statement that you were bound by Supreme Court and Second Circuit established precedent when you voted each time to reject the firefighters’ claims?” Kyl asked.

Sotomayor said no. She said her panel’s decision was based on a thorough U.S. District Court case, which was based on several Second Circuit Court decisions

After more grilling, the judge said she does not interpret the Supreme Court decision the way Kyl does. The Supreme Court didn’t find her panel’s ruling in error, she argued; it “set a standard that was new.”

Rebuttal

Regaining control of the debate, Chairman Sen. Patrick Leahy, D-Vermont, took a couple of minutes to defend the judge. He noted that her decision was based on a 78-page decision by U.S. District Court Judge Janet Bond Arterton.

Meanwhile, the Democrats on the Committee shot out a press release defending Sotomayor’s role in the case.

“The panel decision Justice Sotomayor joined in Ricci followed clear precedent, and it would have been improper ‘judicial activism’ not to,” the statement contends. (Click here to read it.)

Sen. Dianne Feinstein, D-California, also jumped to Sotomayor’s defense. She noted that the Supreme Court ruled in a split, 5-4 decision.

“It’s my understanding that the four dissenters indicated that they would have reached the same conclusion as the second circuit.” Is that true? she asked. Sotomayor concurred.

Feinstein went on to praise Sotomayor for her role as the next in the line of ground-breaking advancements for women, after working their way onto the Supreme Court and procuring the right to vote. Sotomayor would be the third woman on the court out of a total of 111 justices in history.

Sen. Lindsey Graham (pictured), R-South Carolina, used those comments to steer the conversation back to the GOP’s poster firefighter, Frank Ricci.

“Mr. Ricci has a story to tell, too,” he said. He gave Sotomayor a short lesson on the differences between elected office and the lifetime appointments to the Supreme Court.

He said that difference is important, because “the court has, in the opinion of many of us, gone into the business of societal change,” not based on the Constitution, but based on “motivations that can never be checked at the ballot box.”

The judge, as she has throughout the hearings, returned to a pledge to follow the rule of law, pointing to her record of 17 years on the federal bench.

“A Fair Shake”

Sen. John Cornyn, R-Texas, ended his remarks by pointing to Lt. Vargas, the only Hispanic among the New Haven firefighter plaintiffs in Ricci v. DeStefano. Vargas, the son of Puerto Rican parents, “found himself in an odd position, to say the least — to be discriminated based on his race,” based on Sotomayor’s panel’s ruling, the senator said. Vargas scored sixth on the fire captain’s exam; he stands to be promoted due to the Supreme Court’s reversal of that ruling.

Cornyn quoted this paragraph from a New York Times story on Vargas’s struggle:

Gesturing toward his three young sons, Lieutenant Vargas explained why he had no regrets. “I want them to have a fair shake, to get a job on their merits and not because they’re Hispanic or they fill a quota,” he said. “What a lousy way to live.”

“Do you agree with Chief Justice John Roberts’ statement that the best way to stop discriminating on race is to stop discriminating on race?” Cornyn asked Sotomayor, who’s also of Puerto Rican descent.

Sotomayor declined to address that specific quote.

“The best way to live in our society is to follow the command of the Constitution, to provide equal opportunity to all,” she said.

“Courage” Test

Sen. Jeff Sessions later joined the Ricci scrum, questioning if the judge lacked courage when she and her colleagues failed to give the suit a more in-depth analysis. “Wouldn’t we have been better off if the case had been handled in that way?”

Sotomayor stood firm.

“Sir, no. I didn’t show a lack of courage,” she said.

“The court’s decision is clear” on the basis for the decision in both rulings by the second circuit court (one by a three-judge panel upholding the lower court’s decision; another by 13 judges deciding not to give the court a full hearing).

“It is a thorough, complete discussion” of the issue presented to the court.

Past stories on fire department promotions and the Ricci case:

• In D.C., Two Latino Views On Sotomayor
• ConnectiCOSH Kibosh
• Sotomayor: I Didn’t “Hide” Ricci Case
• Is Ricci Being Smeared?
• Sotomayor Speaks On Ricci
• Ricci Takes Center Stage
• Watley: I’d Have Promoted Ricci
• Firebirds, NAACP: Ricci Won’t Stop Us
• “If You Work Hard You Can Succeed In America”
• Was He The Culprit?
• Supreme Court Overturns City On Ricci
• On Page 25, A Hint
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court