We don't have a very good understanding of Judge Sotomayor's reasoning in the Ricci v. DeStefano racial preferences case because she and her two colleagues issued a one-paragraph "per curiam opinion [that] 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reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit," as the Second Circuit's Judge Cabranes, a Clinton appointee, wrote in his dissent from the court's 7-6 denial of en banc rehearing in the case. Thankfully, the Wall Street Journal has posted an audio recording of an hour-long hearing from the Ricci case that sheds a little more light on Sotomayor's grappling (or lack thereof) with the serious claims brought up in this case. The Journal reports that Sotomayor and "the presiding judge, Rosemary Pooler, fire questions at the firefighters' lawyer, Karen Lee Torre." I think the following excerpt, in particular, is worth reading (though it's much more powerful listening Torre make her argument). Judge Pooler asks (I assume Pooler is speaking because she is the only other judge identified by the Journal at the hearing) why the case of Hayden v. County of Nassau "isn't dispositive" in the Ricci case. Torre replies that in Hayden, "Nobody had lost anything. Nobody had taken the test yet. ... No one was hurt". Judge Pooler interrupts and says that the district court judge said "no one was hurt here [in New Haven] either." Torre, flabbergasted, replies:
No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 a piece. Half of their marriages were strained by this. They spent 3 months of their lives holed up in a room like I was and you were when we took the bar exam.
So much for empathetic appeals. Torre then argues that New Haven's decision to throw out an exam that tested vital knowledge for firefighters endangers lives, especially in a "post-9/11 era, no less":
I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. ... Please look at the examinations. ... You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don't do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn't require any knowledge to do the job.
Oops. It looks like Torre just made an argument that was probably a little too classist for Judge Sotomayor's tastes. Nevertheless Torre continues to drive home the point that a mastery of the knowledge required to pass the test in New Haven could have saved lives:
Firefighters die every week in this country. ... [There was a case ] a few miles away where a young father and firefighter Eddie Ramos died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house, with no people to save on Thanksgiving Day, with a truss roof known to collapse early in the fire because of the nature of the pins that hold the trusses together would have collapsed. And for 20 minutes he couldn't find any air and he he suffocated to death. And the fire chief had to go tell a 6 year-old that her father wasn't coming home. I'm not being histrionic. That happens all the time, and if you can't pass a competency exam and answer substantive job knowledge questions, I think that the only compelling governmental interest or Title 7 interest I see--
Then Judge Sotomayor interrupts:
JUDGE SOTOMAYOR: Counsel ... we're not suggesting that unqualified people be hired. The city's not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there's an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you're unqualified--the pass rate is the pass rate--all right? But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that? KAREN LEE TORRE: Because they already developed it, your honor. JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it's valid. KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid.... They had evidence that the test was job-related and valid for use under Title VII.
Sotomayor may have not wanted unqualified firefighters to be elevated to the position of captain and lieutenant--she simply wanted less qualified firefighters to be placed in charge of the lives of other men in the interests of racial diversity. I wonder what Eddie Ramos would say about that if he were alive today. During her confirmation hearing, hopefully we will get to find out what evidence Sotomayor had to back up her claim that this test "is always going to put a certain group at the bottom". Did she actually examine the test to see if it was unfair to a particular group? And, how, precisely, does she think it's possible to create a test that "measures knowledge in a more substantive way"?
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