In light of Justice Sonia Sotomayor’s Supreme Court confirmation hearings this week, in which the controversial nominee must face tough scrutiny from senators of both parties on her judicial philosophy, temperament, and fidelity to the rule of law, political commentators on the left are naturally busy suggesting harsh, delegitimizing questions for… Frank Ricci! The lead New Haven firefighter in the Ricci v. Destefano racial discrimination lawsuit, who will testify in the hearings, has been attacked by Slate magazine, among others, for having previously brought lawsuits against former employers for discriminating against him due to his dyslexia and for firing him for being a whistleblower against his department.
Ignoring the fact that Ricci’s earlier lawsuits have zero legal bearing on the arguments in the Ricci v. Destefano case and that the Supreme Court recently overturned Sotomayor’s ruling against Ricci, why should the other 17 firefighters in the lawsuit suffer if it so happens that Ricci was lawsuit-happy with his previous employers?
Speaking of those other firefighters, Lieutenant Ben Vargas, who will also testify at Sotomayor’s hearings, is the Hispanic firefighter who joined 17 white firefighters in the lawsuit against the New Haven fire department. Vargas shares some superficial similarities with Sotomayor: both are Hispanic; both were born and raised in the U.S.; both have Puerto Rican parents who came here because they were poor. Both grew up in troubled, high-crime, urban neighborhoods in the Northeast; both found a way out of their circumstances through hard work in their chosen career paths.
That’s where the similarities end.
Vargas considers himself an American first and foremost; as he said in an interview with the New York Times, “I love my people. I love my culture… But I am so grateful for the opportunity only the United States can give.”
In a speech on Hispanics in the justice system, Sotomayor said, “America has a deeply confused image of itself that is in perpetual tension… [We] insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.” Which other contexts are those, Justice Sotomayor—putting out fires in a racially sensitive way?
Vargas was hired by the New Haven Fire Department in 1994 as a result of a discrimination lawsuit brought by black firefighters, but he opposes affirmative action in principle and would prefer to have been hired in a race-neutral context (and believes he may still have been hired if he had been afforded a colorblind assessment).
Sotomayor admits that she benefited from affirmative action and continues to support the policy.
Vargas, as a result of joining the Ricci v. Destefano lawsuit, received no support from the New Haven Hispanic firefighters’ association, of which his brother is a member. Vargas had the courage to leave the association.
Sotomayor served for 12 years in leadership positions, including setting policy, on the board of the Puerto Rican Legal Defense and Education Fund, which, among other dubious accomplishments: (1) defended during her tenure several Puerto Rican separatists who had injured five legislators in a terrorist attack on the U.S. House of Representatives and (2) has a close working relationship with ACORN, the community organization that has been indicted numerous times for violating federal and state laws.
Vargas, after joining the Ricci lawsuit, was physically attacked by a fellow black firefighter in retaliation for his action.
Sotomayor upheld, with summary judgment, New Haven’s dismissal of the promotion exam on which Vargas and 17 white firefighters excelled, a dismissal motivated by the fact that no black firefighters did well enough for imminent promotion.
Vargas was ridiculed by fellow firefighters as an Uncle Tom for joining the lawsuit.
Sotomayor had no qualms about slapping down Uncle Tomás for thinking he could advance in his career based on his merits.
Vargas bravely remained in the New Haven fire department despite the tension and resentment displayed toward him by other firefighters. He fought his battle for five years, until most of the department eventually came around to his position.
Sotomayor raised enormous controversy over her position and angered Americans who believe disparate racial results alone should not be used to conclude that discrimination has taken place.
The New Haven Hispanic firefighters’ association publicly reversed its opposition to Vargas’ position when the Supreme Court decided to take up the lawsuit, even before the Court decided the case in his favor.
Sotomayor’s position, presumably influenced by her experiences as a “wise Latina,” was abandoned by the Latino organization that represents Vargas’ profession.
Finally, the Supreme Court ruled in Vargas’ favor and overturned Sotomayor’s summary judgment 9-0.
In the New York Times interview, Vargas said, “I want [my three sons] to have a fair shake, to get a job on their merits and not because they’re Hispanic or they fill a quota. What a lousy way to live.”
In her aforementioned speech, which tacitly supported Hispanic and female quotas in the federal judicial system, Sotomayor said with respect to her profession, “[Some believe] that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law… I wonder whether achieving that goal is possible in all or even in most cases… [We] may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning… Whether born from experience or inherent physiological or cultural differences… our gender and national origins may and will make a difference in our judging” [emphasis added].
What a lousy way to judge.