The great gesturer, Part Two

Judge Sotomayor has completed her appearance. The Committee is now hearing from panels of witnesses with views about the nominee. Two of the Ricci plaintiffs have testified, Ricci himself and the Hispanic plaintiff, Vargas. Linda Chavez has also testified.

Lindsey Graham just finished questioning these witnesses. Graham asked Chavez whether Republican politicians sometimes put minority members in important positions in order to advance the party’s political purposes. The correct answer, of course, is that Republican politicians do this all too often, without success at the political level.

But what is Graham’s point? Is he arguing that judges should condone racial discrimination in employment because Republican politicians sometimes take race into account in handing out political jobs?

Graham also asked Ricci to please not lose sight of the fact that, not long ago, tests for firefighters were rigged in favor of whites.

As usual, Graham is grandstanding, and this time he’s off-base. First, Graham cites no evidence that tests for firefighters were rigged in favor of whites, in New Haven or anywhere else. This nation has a long history of discriminating against African-Americans, to be sure. But employment tests by municipalities aren’t a significant part of that history. Indeed, I would argue that the main reason “disparate impact” theory (which holds that a test a minority does poorly on is unlawful even in the absence of an intent to discrimination unless the test is justified by “business necessity”) came into being mainly because plaintiffs could rarely show that tests were intended to favor whites.

Graham seems to be making up facts so he can sound politically correct, or empathetic, or whatever it is Graham strives to sound like.

Second, there’s no reason why Ricci should think about what firefighter tests were like in the 1960s or 1970s. It has nothing to do with his life, the merits of his case, or even what public policy should be these days when it comes to tests for promoting firefighters. Ricci is entitled to assert a meritorious discrimination claim, and to accept an invitation to testify about the matter, without being lectured to about the past (much less an invented past) by the preening Lindsey Graham.

UPDATE: In her dissent in Ricci, Justice Ginsburg rehearses the history of discrimination by municipal fire departments including New Haven’s. According to Ginsburg, who cites findings by the U.S. Civil Rights Commission from back in the day (1971), the discrimination took the form of eschewing merit-based employment principles and instead relying on nepotism and political patronage or simply refusing to consider minority candidates. There’s no mention of using rigged tests.

JOHN adds: Frank Ricci and Ben Vargas were great witnesses. Every trial lawyer is familiar with adverse witnesses whom you don’t want to touch with a stick; all you can do is let them get off the stand as fast as possible. Ricci and Vargas were in that category. At one point Ricci was asked to explain why the “book learning” necessary to do well on written and oral tests is an important aspect of being a fire captain. He began his answer by saying:

It’s important to realize that over 100 firefighters die in the line of duty each year and an additional 80,000 are injured. You need to have a command of the knowledge in order to make command decisions. You need to understand the rules and regulations.

Experience is the best teacher, but only a fool learns in that school alone.

I like that. The Democrats gave Ricci and Vargas a wide berth.

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