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Does Sotomayor Have Empathy for Frank Ricci?

12:55 PM, May 26, 2009 • By TERRY EASTLAND
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Now that Obama has picked Sonia Sotomayor to take the seat of the retiring David Souter, the summer promises to be really interesting. By the last week of June the Supreme Court will have decided Ricci v. DeStefano. This is the case alleging racial discrimination in employment on the part of New Haven, Conn. Firefighters seeking promotion took a written and oral exam the results of which the city said would be dispositive in deciding which applicants would win a limited number of promotions. But the city decided to disregard the test results because they yielded too many qualified applicants of one race (white) and not enough of another (black). Whereupon the white firefighters, joined by one Hispanic firefighter who also did well on the test, sued the city. But their challenge was dismissed by a district judge. And then the dismissal was reviewed by the tribunal on which Sotomayor sits, the U.S. Court of Appeals for the Second Circuit.

Sotomayor was on a three-judge panel that upheld the district court. The panel's order scanting the serious legal issues in the case compelled other judges on the court to urge Supreme Court review. A while back the Court heard the case, and while oral argument is not a reliable predictor of decision, the smart betting is on a 5-4 decision that at least ensures the plaintiffs their day in court. If John Roberts wins a fifth vote, I'd say the Court, with Roberts writing, will hold that New Haven engaged in racial discrimination. A decision in any respect friendly to the plaintiffs will mean that Sotomayor during her (probably) July confirmation hearing will be subject to more than perfunctory questioning about her role in the case. And also about her apparent indulgence of identity politics and how it affects her approach to judging. As Stuart Taylor explains in his most recent column, Sotomayor has "seriously suggested that Latina women like her make better judges than white males."

So far in his administration Obama has sought to play down matters of race and ethnicity. The choice of Sotomayor ensures that they will be widely discussed. As will be Obama's fuzzy jurisprudence of empathy, which Sotomayor endorsed in her remarks today at the White House. The obvious questions for Obama and his Justice-to-be: what do they feel (since we have to put it this way) about Frank Ricci, the lead plaintiff in the New Haven case, who studied as many as 13 hours a day in preparing himself for the exam? Who spent more than $1000 on books the city designated as homework for the exam? And who, because he is dyslexic and learns better by listening, paid to have them read them onto audiotapes? Ricci got one of the highest scores and would have been promoted but for the city's decision to throw them out because of their inconvenient results. What do Obama and Sotomayor feel about this very diligent, disadvantage-overcoming, working-class guy?

Of course, the better question is what the law says about what New Haven did to him and the other plaintiffs.