If I were a betting man, I would wager that the person who will face the toughest scrutiny at Sonia Sotomayor's Supreme Court nomination hearings before the Senate Judiciary Committee won't be the nominee but rather a private citizen. Frank Ricci, the New Haven firefighter whose discrimination lawsuit Sotomayor tried to bury she was subsequently overturned by the Supreme Court, is due to testify in front of the committee either Thursday or Friday. Ever since Senate Republicans announced last week they had called Ricci to testify, liberal activists have been chomping at the bit. If the appetites of liberal activists are any indication, then Senate Democrats will be chewing Ricci's flesh to the bone.
One might ask why Senate Republicans would put Ricci in such a position. Let us remember that President Obama appointed Sotomayor to the nation's highest court as much for her supposed empathy as for whatever judicial qualifications she might possess. Upon the announcement of David Souter's retirement on May 1, President Obama said:
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
Well, Sotomayor's ruling against Ricci certainly affects the daily realities of Ricci and the other New Haven firefighters. Her ruling certainly affects whether Ricci and the other New Haven firefighters can make a living. When it came to the struggles of Ricci and company, where was the quality of empathy from Sotomayor about which President Obama waxed so eloquently? Ricci's presence before the Senate Judiciary Committee puts the empathy question to the test.
Clearly Ricci's presence perturbs liberal activists, who see him as a threat to Sotomayor's coronation. Leading the charge against Ricci is the liberal activist group People for the American Way (PFAW). Co-founded in 1981 by television producer Norman Lear, PFAW proudly boasts that it "helped lead the coalition that kept Robert Bork off of the U.S. Supreme Court" in 1987.
Shortly after learning Ricci would testify, PFAW circulated an e-mail concerning Ricci's "troubled and litigious work history." PFAW was referring to a lawsuit filed by Ricci in 1995 against the New Haven Fire Department. Ricci contended he had not been hired because of his disclosure of his dyslexia. Eventually, the New Haven Fire Department would hire Ricci in exchange for dropping the lawsuit and payment of Ricci's legal fees.
Brian Beutler wrote on the liberal blog Talking Points Memo:
If you were Frank Ricci, you might say something like, "Frank Ricci got a job and somebody who wasn't dyslexic didn't." Remember, this is the same Frank Ricci who took his reverse discrimination suit all the way to the Supreme Court, where lower court rulings against him--including one by Sotomayor's Second Circuit--were overturned.
Ricci will testify against Sotomayor before the Senate Judiciary Committee next week--this despite the fact that his views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.
Beutler misses the point. Ricci is being remarkably consistent in that he is arguing that discrimination is discrimination. The term reverse discrimination seems to imply that some groups are supposed to be discriminated against -- namely white males. Is Beutler suggesting Mr. Ricci ought to be prohibited from filing more than one discrimination lawsuit in his lifetime? Isn't it possible both lawsuits had merit? If a person genuinely believes they have been discriminated against on more than one occasion why should they prohibited from seeking a legal remedy? Somehow I don't think Beutler would object to an African-American filing multiple discrimination lawsuits unless, of course, that African-American happened to be a conservative.
The fact is that in preparing for these promotional tests, Ricci paid a friend $1,000 to read textbooks onto audio tapes as well as made flash cards, took practice tests, participated in mock interviews and in a study group. Liberals might choose to see Frank Ricci as a malingerer and a malcontent. Conservatives, however, choose to see Frank Ricci as a person who worked diligently for his dream and earned it only to have it unjustly taken from him.
For its part PFAW feigns innocence. Marge Baker, PFAW's Executive Vice-President, said her organization had "simply pointed out the fact that Frank Ricci, on his own behalf, has used employment discrimination laws to help him."
If only it were that simple. Indeed, PFAW also noted Ricci had once been terminated by the fire department in Middletown, Connecticut. Ricci contended he was fired for raising safety concerns. It is worth noting the Middletown Fire Department would later be fined due to safety violations.
Of course, if Ricci were an obstacle for a Supreme Court nominee picked by George W. Bush and Republicans, PFAW would hail Ricci's service as a firefighter and his courage as a whistleblower. But since Ricci is a thorn in the side of the "wise Latina" and by extension President Obama, PFAW instead portrays Ricci as a troubled, litigious malcontent, not as a patriotic, courageous whistleblower. But when Republican Lindsey Graham tells Sotomayor at the outset of the hearings, "you're gonna get confirmed," one must wonder why PFAW even bothers?
Yet it won't get any easier once Ricci testifies. He will be in the awkward position of sitting in between Chuck Schumer and a camera, not to mention be subjected to the comedy styling of newly minted Senator Al Franken. I can imagine Patrick Leahy, the Judiciary Committee Chair, saying, "Let this committee now come to order. The Borking will now resume."
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