(There were some technical problems with yesterday’s post. If you missed it, you can find it here.)

The Sotomayor hearings wrapped up yesterday with an underwhelming performance by poor, dyslexic quiz whiz Frank Ricci. Ricci was one of the firefighter plaintiffs in Ricci v. Stefano—studied hard, passed the promotions test, didn’t get the promotion. The city of New Haven had realized in the meantime that none of the black firefighters was passing the test, and it didn’t want all white(-ish) lieutenants and captains. A Second Circuit panel including Judge Sotomayor held that tossing out the results was OK—in fact, that Title VII of the Civil Rights Act pretty much demanded it. (Because if the city used the test and didn’t promote any black firefighters, it was susceptible to being sued by those firefighters under a Title VII disparate impact theory.) Anyway, the Supreme Court reversed the Second Circuit and said that the city shouldn’t have tossed the test. One of those times when the Supreme Court changes the law because, hey, why not? It can.

Well, this instance of conservative-approved Supreme Court lawmaking heralded opposite day at the Judiciary Committee. In addition to silently cheering judicial activism (conservatives and libertarians devoutly wish the court would’ve been more “activist” in the eminent domain case Kelo v. City of New London too), the Republicans trotted out the firefighter empathy card. And, well… [you need not watch the whole thing]…

… the firefighter empathy card fell kind of flat. As Mike Madden at Salon summarized Ricci’s appearance:

In the end, only one senator, Arlen Specter, the Pennsylvania Republican-turned-Democrat, even attempted to raise the one question that would have actually explained [the firefighters’] presence. “Do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?” Specter asked Ricci.

Ricci—finally given the chance to stick it to the “wise Latina” judge who, in the GOP’s feverish imagination, at least, had tried to ruin his life—took a pass. “That’s beyond my legal expertise,” he said, without hesitating. “I am not an attorney or a legal scholar. I simply welcome an invitation by the United States Senate to come here today.” For the most part, Ricci didn’t try to make any sweeping claims about justice, or about race. Some of his opening statement sounded like it was meant for a different hearing, one on federal grants to local first responders: “The structures we respond to today are more dangerous, constructed with lightweight components that are prone to early collapse, and we face fires that can double in size every 30 to 60 seconds.”

Ha. The only other thing that happened was Republican Senator Grassley accidentally calling Judge Sotomayor Justice Sotomayor.

So, did the Democrats totally waste their forgone conclusion? Dahlia Lithwick thinks so. It is striking how similar the language and ideology on display at these hearings was to what we witnessed at the hearings of Justices Alito and Roberts. We’ve entered an era where right-wing code words are appropriated without even a sideways glance to let you know they aren’t being used with complete sincerity… If you didn’t know anything about what judges do, it would be unclear whether Sotomayor even realized she was telling half-truths with her baseball metaphors and her “applying the law” mantra. And that’s demoralizing. It would be demoralizing even if Sotomayor ended up being confirmed by a unanimous vote. (And that’s not going to happen.)

Didn’t a constitutional scholar win the election?

Annie Wagner is The Stranger's former film editor. She was born and raised in Capitol Hill, but has since lived in such far-flung locales as Phoenix, AZ, Charlottesville, VA, and Wedgwood. After graduating...

11 replies on “Firefighter Empathy Card… The End!”

  2. Hi,

    I think your treatment of the Title VII issues in the Ricci case is so fucking ignorant it can only have been tailored for an audience you simply assumed with gobble them up without demurrer. No, seriously.

    It’s. Just. Ignorant.

    The Supreme Court didn’t “change the law”; this question was one of first impression, that question being: can the city directly discriminate against a guy like Frank Ricci in order to avoid a disparate impact suit? The court gave an answer.

    Although I agree that it was simply a silly gimmick to have Ricci appear at the hearings anyway, I also think it is a mistake, Oprah, to focus as you do on the fact that Mr. Ricci was insufficiently manipulative to conjure tears; a person like you, after all, would have thrown about the “poor, dyslexic quiz whiz” shtick if Mr. Ricci had entered the committee room with his face burned off.

    You also need to stop making Ms. Lithwick your go-to authority on matters of law. She, like you, spends an inordinate amount of time in the company of people who agree with her. It’s unhealthy.

  3. @2 is has it right: your legal analysis is appalling to anyone that has studied the law. I found your earlier argument that the existence of common law proves that judges are invited to make up the law as they go along especially demonstrative of your ignorance on the subject.

    I am surprised that as a reporter you did not do some research, or talk to a legal scholar or a lawyer before espousing what powers justices possess. Your comments sound like wrongheaded conclusions based on misreadings of Wikipedia entries.

  4. Good Morning Annie,
    Sotomayor will be approved by a full senate. I figure something like 75-25 vote. She’ll have some dissenters like Roberts’ confirmation vote. I didn’t think it necessary to have the plantiff Ricci present at the hearing. The Supreme Court’s vote in favor of him (vs. New Haven) was a far more important indication showing Sotomayor’s judicial capability. I do agree that people should get promotions based on merit. I forsee an ending of affirmative action soon.

    As for Sotomayor, she may end up dissappointing liberals and judicial activists. Democratic presidents have had fewer SC appointments the past fifty years or so. One of their appointments is bound to dissappoint like Souter dissappointed the conservatives.

  5. It’s fun watching all this because SLOG and the rest see this as some sort of triumph of Liberalism, whereas my interpretation has been that it’s the last desperate gasp of a dying ideology.

  6. I wouldn’t call her conservative though, just a moderate, like Obama. She’ll piss off the far left and far right which is fine by me.

  8. I don’t see it as cyincal, just a reaffirmation that the courts have always done nothing but apply the law. Sotomayor isn’t just saying that she only applies the laws. She’s implying that this is what justices have always done, and that claims to the contrary misconstrue the role the court has played in the past. Judicial activism to the extent that it exists has always been form of legal hermeneutics, not a matter of judges creating legislation from the bench. That only happens in the minds of conservative windbags who have zero understanding of the anglo-american legal tradition.

  9. The whole Obama Democratic strategy is to appropriate and/or neutralize Republican wedge issues. In the end she and him are both moderate liberals.

  10. @2: I go to the University of Chicago Law School. All of my time is spent around people who disagree with me. And I cited Lithwick for a political proposition, not a legal one.

    @3: I never said that judges make up law as they go along. But yes, I am pushing hard against the idea that the law as it exists compels a certain result in every case. That is almost never true at the Supreme Court level.

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