New Haven Independent

Posted by: James FP | July 13, 2009 2:55 PM

"Also remaining to be seen is whether Democrats will attempt to discredit Frank Ricci as a witness due to the recent revelation that he got his job through his own discrimination complaint, claiming he was denied employment on the basis of his dyslexia."

Does Ricci actually need to be discredited as an expert on Constitutional interpretation and the role of the judiciary? Did I miss the part where he wrote several law review articles? Don't get me wrong, he's not the only witness that I take issue with (I can't for the life of me figure out why the Democrats called David Cone), but really, Ricci is a guy whose jurisprudential views can be summed up as: "Antidiscrimination laws are great when they work in my favor and unconscionable when they don't."

It also seems that the NHI failed to point out a fairly important misrepresentation by Sen. Sessions (who, by the way, once claimed he thought the KKK was alright until he found out that "some of them were pot smokers): the opinion was not Judge Sotomayor's, per se. It was the unsigned opinion of a three-judge panel (which included a bonafide white male), and the panel ruled unanimously.

Posted by: A Lawyerly Response | July 13, 2009 3:57 PM

James FP,

I could not agree more with (most of) your comment.

I would note though that David Cone makes (a lot more) sense. Cone was a leader in the MLB player's union during the baseball strike. Sotomayor was the DISTRICT court judge who handled this case which required a lot of negotiation by Judge Sotomayor with the parties, which eventually led to the end of the strike. Sotomayor is often referred to as the judge who saved baseball.

Unlike Ricci who probably never actually met Sotomayor in her role as an APPELLATE judge, Cone may have insights into her demeanor, thought processes and ability to work through complicated and highly visible cases. The difference between being a party to a case in federal district court versus appellate court is central to whether you actually engaged with the judge or just read their opinion after your lawyer submitted briefs and maybe made a short presentation to the panel.

The difference between a party which fully engages with a judge in a complex case requiring personal direct engagement and a member of a group of 21 on appeal to a panel of judges where the plaintiff does not even meet any of the judges is pretty broad.

The Majority's (Democratic) witnesses are loaded with people who have worked closely with Sotomayor on legal matters. Cone would likely fit into that category. The Minority's witnesses lack anyone who fits into that category. It is mostly a show group of people from the NRA, anti-abortion groups, etc. This allows for the Minority (who know she will be appointed) to play to their base groups. If they had someone to go after her capacity instead of her alleged ideology they would proffer them. That would be along the line of Clarence Thomas where several people who had worked closely with him opposed his nomination.

The two New Haven firefighters are part of this show. They will go up, tell how much pain Sotomayor (though apparently not the rest of the majority of judges on the second circuit who agreed with her) caused them. They will then have their 5 minutes of fame and move on.

It is interesting that Ricci got onto the fire department by alleging discrimination because of his disability but then got promoted by filing a claim arguing that anti-discrimination laws were unfair if used by others. Maybe the Senate can ask him for the legal theory behind that.

But hopefully that helps explain the difference between Ricci and David Cone -- that and one pitched a perfect game for the Yankees.

Posted by: THREEFIFTHS | July 13, 2009 6:17 PM

If the Republicans call call Ricci,Then they should call Joe the plumber!!!

Posted by: lance | July 13, 2009 7:10 PM

the liberals are attacking ricci over his alleged playing of the "dyslexia card" with the firebirds (black firefighters) playing of the "race card". last I knew dyslexia is a learning disability. are these ricci critics saying that being black is a learning disability? just wondering.

Posted by: jack | July 13, 2009 7:59 PM

A question for the lawyers out there. Can a Supreme Court Justice be impeached and removed from office for violating their Oath of Office? Say a Justice began to issue rulings based on their own subjective opinions instead of on what the Law dictates? I would really like to know for future reference.

Posted by: Big Dog | July 13, 2009 8:24 PM

Lawyer says "It is interesting that Ricci got onto the fire department by alleging discrimination because of his disability but then got promoted by filing a claim arguing that anti-discrimination laws were unfair if used by others"
It is amazing how people distort the FACTS. Ricci never argued that anti-discrimination laws were unfair if used by others. He argued, and prevailed on, that the City violated anti-discrimination laws. That's why the court found that the City violated the plaintiff's Title VII rights. If anything what these cases highlight, along with all the other cases the City has lost over the years that have been brought by black and white cops and firefighters, is that the City fails to comply with the laws. Local, State and Federal!!!!

Posted by: James FP | July 13, 2009 8:58 PM

Anybody concerned that Sotomayor's rulings will be BASED ON her own "subjective feelings" is barking up the wrong tree. Will her rulings be influenced by her perspective? Absolutely. If you have a problem with that, then I have to assume that you vociferously denounced Justice Alito's statement that he does "take into account" his own experiences, as well as those of the people he has met in his life (http://thinkprogress.org/2009/05/28/flashback-alito-on-his-background/). It's worth noting that not a single person has produced a single opinion written by Judge Sotomayor in which she has clearly based her decision on her own feelings while disregarding settled precedent.

And nobody is hitting Ricci for playing the "dyslexia card." We're hitting him because he has literally sued or threatened to sue every single employer he's ever had when he hasn't gotten his way (http://www.slate.com/id/2222087/). Perhaps Ricci should have said, "If you're willing to shamelessly sue everyone around you, you can succeed in this country." As Lithwick says in that piece, there are two ways to look at Ricci's voluminous legal history: "[p]erhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white," or, "serial plaintiff--one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command." And we're hitting him because regardless of which of these two is true, as Lawyerly Response pointed out, there is no way that he can reasonably be considered to be one of the 40 or so people in this country who are most qualified to speak on Judge Sotomayor's nomination.

Posted by: angelo | July 13, 2009 9:07 PM

Hey, Jack
if you could impeach a Supreme Court justice for ruling based on subjective opinions, Justices Scalia and Thomas and everyone else in the Bush v. Gore majority would have been impeached. They talked states rights for years, but voted for Bush, not principle. By the way, Alito said in his confirmation hearing just about the same thing as Sotomayor, that he was influenced in discrimination cases by his poor Italian family. That was in his HEARING, but Jeff Sessions thought that was great. This is all politics, no substance.

Posted by: JFP | July 13, 2009 11:59 PM

Big Dog,

I had made a statement similar to Lawyer's, but I do think that you have partially set the record straight: the Supreme Court did, in fact, rule that Ricci was discriminated against under Title VII.

But it seems to me that the larger point remains that Ricci's legal history betrays a very solipsistic worldview: nevermind that other firefighters had passed the exam, demonstrating that they were qualified to be Lieutenants and Captains. (To preempt an argument I know will be thrown at this, I'm pretty sure that Yale's Chemistry and Engineering departments could ace the exams, but I doubt we'd really want them leading the response to New Haven's fires.) Nevermind that it wasn't even certain that he wouldn't be promoted. He refused to consider that anybody other than him and others like him could be discriminated against.

Once again, to borrow from Dahlia Lithwick's commentary on this: either Mr. Ricci suffered at the hands of a string of cruel bosses who were determined to discriminate against him for being dyslexic, being a whistle blower, and being white, or Mr. Ricci is a "serial litigant" who reacts to professional setbacks by filing or threatening to file lawsuits and "more or less complaining his way up the chain of command."

After these revelations, it seems that Mr. Ricci has the mindset of a six year old. Frankly, I don't want a man this self-centered and ready to blame everybody else when things don't go his way charged with saving my life in an emergency. I'm pretty sure he won't be able to file a lawsuit against a fire or a heart attack.

Posted by: Bob Solomon | July 14, 2009 8:02 AM

One small point - If you want to attack Judge Sotomayor on her Ricci decision, fine (but keep in mind that Justices Breyer, Ginsburg, Souter, and Stevens agreed with Sotomayor), but attack her on her legal reasoning. Is that what Ricci is going to do in his testimony? Does a disgruntled litigant have some penetrating insight to deliver? He can add plenty of heat, but little light. Having him testify is a statement by the Republicans that for them this is more circus than confirmation. Nor should the Democrats attack Ricci. He pursued his rights twice and prevailed both times. We can spend a lot of time interpreting Ricci, and the decision may turn out to be more or less than our current view, but the court has ruled.

Posted by: Resident | July 14, 2009 10:24 AM

Ricci for Mayor!

Posted by: Alphonse Credenza | July 14, 2009 1:01 PM

It's not just about Ricci -- there were other plaintiffs.

Posted by: THREEFIFTHS | July 14, 2009 3:42 PM

Hey all here is a new case.

http://www.greenwichtime.com/localnews/ci_12828767

Posted by: Bruce | July 14, 2009 5:28 PM

I think everyone's missing the real question here -- how did it come to be that 7 of 9 supreme court justices went to either Yale or Harvard? Don't get me wrong, these are fine universities. But are they that much better than all the others in the country that their students would almost completely fill out the top tier in our judicial system?

Maybe this is not such an earth-shattering revelation in itself, but coupled with the fact that all of our presidents for the last twenty years come from that same tiny pool of applicants ... it makes me wonder why we don't have more variety when we have so many other competent choices. I guess all of the most powerful political figures have tendencies to promote from within their small circle of associates.

Doesn't anyone else find this bizarre?

Posted by: James FP | July 14, 2009 10:19 PM

Bruce, I agree with you--there should be a little more institutional diversity on SCOTUS. I should also add that a good chunk of SCOTUS clerks, who are charged with injecting the Court with new lines of legal thought, largely come from these same institutions.

One other thing to go along with what you've said, although perhaps a bit less focused on educational history: the current Supreme Court is remarkably professionally homogeneous. Every Justice has worked his or her way up through the Federal Judiciary--none have experience as legislators. Maybe Grace Napolitano will be the choice for a future vacancy? Former Attorney General and Governor, and graduate of Santa Clara and Virginia Law?