The limits of Sotomayorian empathy

Paul Mirengoff wrote about the Ricci v. DeStefano case this past January in “Racial preferences — the plot thickens” when the Supreme Court accepted review of the case. The case involves a truly disgusting example of the injustice of “affirmative action” that was blessed by Sonia Sotomayor as a member of the Second Circuit panel when it affirmed the district court decision in a ruling that devoted one paragraph to the merits of the case.

Paul cited Ed Whelan’s post quoting Second Circuit Judge Jose Cabranes, who dissented from the Second Circuit’s 7-6 decision not to rehear the case before the full court:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Paul noted that Ricci promises to be an enormously significant case on the merits, but that Judge Sotomayor’s participation in the upholding of New Haven’s racial discrimination created an interesting subplot. Paul wrote that, although the Second Circuit panel including Sotomayor was too gutless to write an opinion, she was “considered a prime candidate for nomination to the Supreme Court.” Bingo.

The Ricci case is pending before the Supreme Court. Oral argument took place on April 22. The Court’s decision should be issued by the end of June. Now comes Bill Kristol to take a look at the case in the context of the Sotomayor nomination in the Weekly Standard editorial “Veni, vidi…Ricci!”

JOHN adds: Here is what the Ricci case is all about:

Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. Ricci studied for eight to 13 hours a day to prepare for the combined written and oral exam in 2003 that he hoped would win him a promotion. And he got one of the highest scores. But Ricci and other would-be lieutenants and captains with high scores did not get the promotions they expected. The reason was that–because not enough black firefighters had done well enough to be eligible–New Haven decided to discard the test results and make no promotions at all. Racial politics clearly did figure in the city’s denial of promotions to the white and Hispanic firefighters. The Rev. Boise Kimber disrupted meetings of the city’s civil service board and warned its members of a “political ramification” if they certified the exam results.

Some have speculated that Frank Ricci will be called as a witness in Judge Sotomayor’s Senate confirmation hearing.

SCOTT adds: The above description of the case, quoted by Kristol, is drawn from Stuart Taylor’s excellent December 2008 National Journal column urging the Supreme Court to hear the case. I’ve removed the ellipses from the quoted description in the interest of readability.


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