(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?