New Haven Independent

That was the message Ricci delivered when he spoke before the U.S. Senate Judiciary Committee in its confirmation hearings on the Supreme Court nomination of Sonia Sotomayor.

At the same time, after they delivered prepared remarks, Ricci and fellow New Haven firefighter Ben Vargas refrained from openly attacking Sotomayor or her integrity when given the chance in a question-and-answer period.

In one sense, Ricci was one of a parade of witnesses. In another, he was the star witness everyone was waiting for: the man whose name has become a rallying cry for conservatives concerned about what they consider reverse discrimination in hiring. The named plaintiff in Ricci v. DeStefano, the case in which the Supreme Court last month ruled that New Haven shouldn’t have ignored the results of a fire promotional exam just because African-Americans didn’t score high enough.

Committee Chairman Sen. Patrick Leahy, D-Vermont, introduced Ricci as the man whose name has been mentioned second only to Sonia Sotomayor’s in the Supreme Court nomination hearings this week.

Ricci, who has dyslexia, followed his finger along the text of a four-page statement as camera shutters snapped around him. He spoke for six minutes under the glaring TV-intensity lights, and before a national audience.

Ricci told a story of a man who struggled against adversity to reach for a lieutenant’s promotion, but had Sotomayor use “politics and personal feelings” to block his way.

Ricci argued that firefighters have an increasingly technically demanding job, requiring “a great deal of knowledge and skill.”

“Ours is not a job that can be handed out without regard to merit and qualifications,” he said. “When your house is on fire or your life is in jeopardy, there are no do-overs.”

For that reason, he said, he studied “harder than I ever had before.” All the studying caused him to become a “virtual absentee father and husband” for months.

The second-circuit panel that included Judge Sotomayor dismissed the case in a summary order “that mentioned my dyslexia and thus led everybody to thinking that this case was about me and a disability claim. This case had nothing to do with that. It had everything to do with ensuring our command officers were competent to answer the call and our right to advance in our profession based on merit regardless of race.”

Hammering home a Republican theme, he declared, “Americans have the rights to go into our federal courts and have their cases judged based on the Constitution and our laws, not on politics and personal feelings.”

He addressed many erroneous media reports that said that no blacks passed the promotional tests. He said the suit has been wrongly characterized as holding back minorities.

“That was entirely false,” he argued, “as minority firefighters were victimized by the city’s decision as well. As a result of our case, they should now enjoy the career advancement that they earned and deserve.”

Three black and three Hispanic candidates passed the captain’s exam, and six black and three Hispanic firefighters passed the lieutenant’s exam. If the test had been validated in March 2004, three blacks stood to be promoted to lieutenant and two Hispanics to captain over the following two years.

Ricci argued that Sotomayor’s case reduced people to “racial statistics” and divided people on racial lines.

“Our courts are the last resort for Americans whose rights are violated,” he said. Making rulings based on “statistics and politics,” where the outcome “could result in injury or death,” is “contrary to sound public policy,” he charged.

Vargas Was “Devastated”

Once Ricci finished, his New Haven colleague, Lt. Ben Vargas got his moment in the spotlight. He played another symbolic role for Sotomayor’s opponents — as a Latino who opposes a Latina nominee on the cusp on making history.

Lt. Vargas thanked the panel for the first time to tell his story publicly.

“I am Hispanic, and proud of the Heritage and background that judge Sotomayor and I share, and I congratulate Judge Sotomayor on this nomination,” said Vargas (pictured). But he painted her as a roadblock in his own struggle for advancement because she joined a ruling upholding a lower-court ruling that would have allowed New Haven to ignore the results of a test in which he scored high enough for promotion.

“I am the proud father of three young sons. For them, I sought to better myself.”

“I do not want my sons to think their father became a captain because he was Hispanic and used his ethnicity to get ahead. Worse still is to jump the line ahead of others who are more qualified. There is no honor in that.”

Vargas said he spent three months studying every day for the captain’s exam. He said he holed up in a hotel at one point, bringing photos of his children, to focus on studying.

He said he was given short shrift by Sotomayor after so much hard work.

“I was shocked when I was not rewarded for this hard work and sacrifice, but actually penalized for it,” said Vargas. “I became not Ben Vargas, the fire lieutenant who proved himself qualified to be a captain, but a racial statistic.”

“I expected Lady Justice, with the blindfolds on” to rule in an “open, transparent” way. Instead, he said, he was “devastated” to see the case dismissed by Sotomayor’s three-judge panel with a one-paragraph statement.

Citing the language in a concurring opinion in Ricci written by Supreme Court Justice Samuel Alito, Vargas said, “We did not ask for sympathy or empathy. We asked only for even-handed enforcement of the law.”

In questioning, Sen. Jeff Sessions, R-Alabama, asked Vargas if he thought other firefighters could have passed the test if they studied as hard as he did. Vargas replied yes.

Republicans also called forward Peter Kirsanow, of the U.S. Commission on Civil Rights, as well as Linda Chavez, chairman of the Center for Equal Opportunity, to cast Sotomayor as a judge whose decision on Ricci was driven by racial politics.

Specter Pops The Question

After the witnesses testified, they fielded questions from senators on the committee. Sen. Arlen Specter, a Republican-turned-Democrat from Pennsylvania, asked both Ricci and Vargas if they “doubt” the “good faith” of Sotomayor in her deliberation in their case.

Both responded that they came to Washington not as politicians or legal scholars, but as firefighters with real-life experience to share.

“That’s beyond my legal expertise. I’m not an attorney or legal scholar,” Ricci told Specter. “I simply welcomed the invitation by the Untied States Senate to come here today. This is the first time we got to testify about our story.”

Vargas’s response: “We were invited here to give our story, and we wanted to focus on that. I didn’t really put much to that.”

Sen. Lindsey Graham, R-South Carolina thanked the pair for their testimony.

“Mr. Ricci, I would want you to come to my house if it was on fire,” he said, “and I appreciate how difficult it must have been for you to bust your ass to study so hard,” only to have the test results scrapped.

Graham asked Vargas if he caught heat for his role in bringing the suit, and as a Puerto Rican going up against the woman who would become the first Hispanic Supreme Court justice.

“Did people call you an Uncle Tom?” asked Graham.

“Yes,” said Vargas.

“People thought you were disloyal to the Hispanic community?” probed Graham.

“Absolutely,” Vargas replied.

Graham applauded him for the courage to bring the suit: “Well frankly, my friend, I think you’ve done a lot for America and for the Hispanic community. My hat’s off to you.”

“Empathetic” Irony?

The fact — and the irony — that Republican senators focused on the emotional personal stories of the two New Haven firefighters was not lost on one pro-Sotomayor legal scholar who was live-blogging the hearings, Yale Law School’s Andrew Pincus.

The Republicans were using Ricci and Vargas to present exactly the kind of legal approach that have accused Sotomayor of improperly using, Pincus argued.

“Republicans’ decision to ask Mr. Ricci and Lt. Vargas to testify is interesting, given the concerted attack on the idea that ‘empathy’ has anything to do with judicial decisions,” he wrote here. “The two witnesses’ testimony focused on the extraordinary effort that they put into studying for the promotion exam, their disappointment at the city’s decision, and their unhappiness that the district court and court of appeals rejected their claim, the latter without issuing an opinion. It does not denigrate their testimony to point out that it is an explanation of the actual impact on their lives of the lower court rulings — essentially an appeal for empathy, and therefore precisely what Republicans claim should not be relevant to judicial decisionmaking.”

An Ex-Cop’s Rebuttal

To counteract the firefighters’ testimony, Democrats on the Judiciary Committee brought several witnesses. Dustin McDaniel, attorney general of Arkansas, defended Sotomayor’s stance on the Ricci case.

As a former policeman, McDaniel said, “I understand the frustration of Mr. Ricci and his colleagues with the process” of civil service exams. “I also understand the city’s fear of litigation and its desire to avoid unfair results.”

“I am for a process that is fair,” said McDaniel, but he said ensuring fairness in the process is “extremely difficult.”

“Judge Sotomayor’s ruling in Ricci was not judicial activism at work,” testified McDaniel. “To the contrary, she followed existing law.” McDaniel called Sotomayor an “abundantly qualified” nominee who has nothing in her record to support any concern that she would be an “activist judge.”

After the panel, the firefighters were congratulated by Sen. Sessions for their testimony.

“It was an honor” to take part, said Ricci.

Vargas declined media interviews, except one very brief one to a Spanish-language reporter.

“I want to keep it simple. We took the exam, we passed the exam, we followed the city’s rules, and they didn’t promote us,” he said. As he spoke, he held his fire cap in his hand, revealing a reminder that he keeps stored there, photos of his three young sons.

Vargas declined further comment on the case. The group of firefighters decided not to speak to the media awaiting them in the “stake-out zone” outside the hearing room. They made their exit in a group, with Vargas standing the middle, to protect him from another media gauntlet.

The rest of the hearings were set to wrap up Thursday. A final committee vote on Sotomayor’s confirmation has been set for July 21 at 10 a.m. The full Senate plans to vote before August recess.

Past stories on fire department promotions and the Ricci case:

• In D.C., Two Latino Views On Sotomayor
• Dems Swing Back On Ricci
• 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