Hispanic Firefighter Says Sotomayor Judged Him on Race Rather Than Content of Character

By Edwin Mora | July 21, 2009 | 4:46 PM EDT

Supreme Court nominee Sonia Sotomayor testifies on Capitol Hill in Washington, Wednesday July 15, 2009, before the Senate Judiciary Committee. (AP Photo/Charles Dharapak)

(CNSNews.com) – Firefighter Ben Vargas, who is Hispanic, told the Senate Judiciary Committee that Judge Sonia Sotomayor played “racial identity” politics instead of judging him and his fellow firefighters “on their qualifications and the content of their character" in a reverse discrimination case he brought against the city of New Haven, Conn.
“I became not Ben Vargas, the fire lieutenant who proved themselves qualified to be captain--but a racial statistic,” testified Vargas, a lieutenant in the New Haven Fire Department.
“I had to make decisions whether to join those who wanted promotions to be based on race and ethnicity, or join those who would insist on being judged solely on their qualifications and the content of their character,” Vargas added.
“I am willing to risk and even lay down my life for fellow citizens, but I was not willing to go along with those who place racial identity over these more critical considerations,” said Vargas.
Vargas was one of the 18 firefighters who filed suit in 2006 against the City of New Haven in a reverse-discrimination case, Ricci v. DeStefano.
The firefighters had studied and taken a test for promotion to managerial slots in the department, but because no African-Americans scored high enough on the test to also be considered for promotion, the city threw the test out, ending the possibility for promotion of those firefighters who passed the test, including Vargas.

Lt. Ben Vargas, New Haven firefighter, testifies before the Senate Judiciary Committee on July 16, 2009, regarding the nomination of Sonia Sotomayor to be an associate justice of the Supreme Court. (AP Photo)

The 18 firefighters accused the city and municipal officers of "reverse discrimination," a violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment. The court ruled against the firefighters, and they appealed.
In an appeal to the Second Circuit Court of Appeals, where Sotomayor works on a three-judge panel, the court affirmed the ruling by the Connecticut District Court in a one-paragraph summary order against the firefighters.
The case then went to the U.S. Supreme Court, which ruled (5-4) against the Appeals Court and, as such, against Sotomayor and the other judges in June 2009. The firefighters were vindicated.
Vargas and several other firefighters were invited to testify at Sotomayor’s confirmation hearing last week.
“I thought it clear that we were denied our fundamental civil rights,” Vargas told the committee in explaining the firefighters’ lawsuit.
He also said that while he is Hispanic and “proud of the heritage and background that Judge Sotomayor and I share,” the “focus should not have been on me being Hispanic.”
“The focus should have been on what I did to [earn] our new promotion to captain and how my own government and some courts responded to that,” testified Vargas. “In short, they didn't care. I think it important for you to know what I did, that I played by the rules and then endured a long process of asking the courts to enforce those rules.”
He continued: “I am the proud father of three young sons. For them I sought to better my life, and so I spent three months in daily study, preparing for an exam that was unquestionably job-related. My wife, a special education teacher, took time off from work to see me and our children through this process.
“I knew we would see little of my sons during these months, when I studied every day at a desk in our basement, so I placed photographs of my boys in front of me,” Vargas testified.
“When I would get tired and wanted to stop – wanted to stop, I would look at the pictures, realize that their own future depended on mine, and I would keep going. At one point I packed up and went to a hotel for a day to avoid any distractions, and those pictures came with me.
“I was shocked when I was not rewarded for this hard work and sacrifice, but I actually was penalized for it.”
Vargas explained that in his line of work an individual’s race and origin is irrelevant as he explained what he considers differences between the judicial system and being a firefighter.
“In our profession, the racial and ethnic makeup of my crew is the least important thing to us and to the public we serve. I believe the countless Americans who had something to say about our case understand that now,” said Vargas.
According to Vargas, the plaintiffs were distraught in regards to their case being dismissed despite the legal implications involved.
“We were devastated to see a one-paragraph unpublished order summarily dismissing our case, and indeed even the notion that we had presented important legal issues to that court of appeals,” said Vargas.
“I expected the judges who heard my case along the way to make the right decisions, the ones required by the rule of law,” he said.
During the fourth day of confirmation hearings Sen. Lindsey Graham (R-S.C.) asked Sotomayor what “binds her to fundamental rights?” She said, “The rule of law.”
In concluding his statement to the committee, Vargas testified: “We did not ask for sympathy or empathy. We asked only for even-handed enforcement of the law and prior to the majority justice opinion in our case, we were denied just that.”