New Haven Firefighters Decry Sotomayor Decision for Judging People by Race Not Merits

By Fred Lucas | July 16, 2009 | 6:56 PM EDT

New Haven, Conn. firefighter Ben Vargas testifies on Capitol Hill in Washington, Thursday, July 16, 2009, before the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Sonia Sotomayor. (AP Photo/Charles Dharapak) - Frank Ricci, who has become a national name since the nomination of Sonia Sotomayor to serve on the U.S Supreme Court, testified on Thursday before the Senate Judiciary Committee, which is deciding on the Second Circuit Court of Appeals judge’s confirmation.
Ricci was the lead plaintiff in a case of 20 firefighters who passed a test to be promoted to captain in the New Haven, Conn., Fire Department. The test was tossed out, because no black firefighters did well enough to warrant promotion. Ricci and others sued when they were passed over for promotion.
Ricci told the Judiciary Committee: “I studied harder than I ever had before: Reading, making flash cards, highlighting, and reading again, all while listening to prepared tapes. I went before numerous panels to prepare for oral assessment. I was a virtual absentee father and husband for months because of it.
“Despite the important civil rights and constitutional claims, the court of appeals disposed of our case in an unsigned, unpublished summary order that consisted of a single paragraph that mentioned my dyslexia, and thus led everybody to think that this case was about me and a disability,” said Ricci.
“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," Ricci added.

Ricci also told the panel that "achievement is neither limited nor determined by one's race, but by one's skills, dedication, commitment and character." The court rulings against him reflected a flawed belief "that citizens should be reduced to racial statistics," he said. "It only divides people who don't wish to be divided along racial lines."

A co-plaintiff in the Ricci case, Ben Vargus, recalled the time spent away from his family in preparing for the test.

"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, “but the focus should have been on what I did to earn a promotion to captain and how my own government and some courts responded to that."

The case has been a paramount issue in the confirmation process of Sotomayor, because as an appeals court judge, she ruled with the panel that summarily dismissed the Ricci case, fueling concerns about her legacy of identity politics.
However, the U.S. Supreme Court recently ruled 9-0 that the Second Circuit was wrong to refuse to hear the case and ruled 5-4 that New Haven was wrong in rejecting the test and had, indeed, discriminated against the firefighters.

Sen. John Cornyn (R-Texas) stressed that the problem, as reflected in the high court’s 9-0 ruling, is that Sotomayor should have given more consideration to the case.
“I would have felt better if Judge Sotomayor had said this was a really important issue that should have been addressed and slipped through our fingers – she didn't,” Cornyn said.

Sen. Arlen Specter (D-Pa.) asked that with issues such as warrantless wiretapping and compensation for 9/11 victims' families, "Isn't this heavy on one case?"

The New Haven case alone should not be grounds alone for judging Sotomayor, said Wade Henderson, president of the Leadership Conference on Civil Rights.

"Judge Sotomayor hardly acted alone or, for that matter, outside of the well-established law on the Second Circuit at the time,” said Henderson. “Instead, she was on a three-judge panel that ruled unanimously against the plaintiffs."