As I watched Frank Ricci, a New Haven, Conn., firefighter, make his case to the Senate Judiciary Committee on Thursday, I felt, well, sympathy. What else?
Does that make me a bad person — or just (potentially) a bad judge?
For the Republicans, it was so much gamesmanship to bring Ricci and a Latino firefighter to Congress to testify at Sonia Sotomayor’s confirmation hearings. But that didn’t mean Ricci wasn’t sympathetic.
Whatever your feelings on affirmative action, Ricci obviously got a raw deal. But Ricci’s testimony — his fingers tracing the words in order to help deal with his dyslexia — was meant to serve only one purpose: to make you wonder why Sotomayor wasn’t sufficiently sympathetic to the white firefighter.
For you irony fans, this is an easy one to spot (noted early by Salon ‘s Glenn Greenwald). Haven’t we been listening to all those Republican senators lecturing Sotomayor on the need to hew to the law and not be guided by sympathy? That’s unless, I guess, the sympathetic figure turns out to be on your side, in which case judges apparently shouldn’t worry so much about following lawyerly stuff such as precedent.
It was funny, unless you thought about it hard, in which case you were left, as Sen. Tom Coburn had (incredibly) advised Sotomayor, with “some ‘splainin’ to do.”
And as I watched Ricci, I also thought about who wasn’t there to testify. That would be the black firefighters who also were at the heart of the Ricci case. I’m guessing some of them were sympathetic too.
If you haven’t been paying attention, Ricci was among those taking a test to become a lieutenant on the New Haven force. He made the grade, but no black firefighters did. No blacks made captain, either. So New Haven threw out the results, saying it feared a civil-rights lawsuit. Ricci, et al., sued.
The U.S. District Court ruled for New Haven. Sotomayor and two other appellate judges ruled for New Haven. But the Supreme Court, in a 5-4 decision, ruled for Ricci.
This is not a new story. For whatever reason — skewed tests, too many failing schools, too many single-family homes, continuing effects of segregation, some other explanation short of a bell curve — blacks do not score nearly as well as whites on standardized tests.
If standardized tests play a key role in getting into college, in getting into law school, in becoming a lieutenant in the fire department, what are we, as a society that values opportunity, supposed to do if too few blacks and other minorities qualify?
One answer is to do nothing, except quote the Rev. Martin Luther King’s line about the quality of our character — as if King wouldn’t be on the side of affirmative action.
Another answer is to recognize the problem — as, say, the U.S. Army has done — and find a way to pick out otherwise qualified applicants.
New Haven clearly hadn’t offered a test that was meant to discriminate. And yet, the test left the city, one with a majority-minority population, with a new class of nearly all white officers in its fire department. How do you resolve discrimination that isn’t exactly discrimination?
And although Sotomayor’s ruling was quite narrow — not really taking on affirmative action directly — it’s pretty clear that a wide-ranging discussion of the topic would have been a little more enlightening than, say, the widely held phony outrage about Sotomayor’s wise-Latina quote.
What we did get was this exchange between Sen. John Cornyn and Sotomayor:
Cornyn: “So I want to ask you, in conclusion, do you agree with Chief Justice John Roberts when he says, ‘The best way to stop discriminating based on race is to stop discriminating based on race’?”
Sotomayor: “The best way to live in our society is to follow the command of the Constitution — provide equal opportunity for all.”
I doubt anyone thinks affirmative action is a perfect, or enduring, solution. Nobody wants to continue to use race as a way to measure anything. Nobody doubts the pain involved.
There was a fascinating piece in the New York Times magazine recently about how affirmative action is seen differently by Clarence Thom as and Sotomayor. Thomas felt diminished and demeaned by it. Sotomayor welcomed the chance it offered for her to get into Princeton, where she graduated summa cum laude. She has since pushed for others to get the same chance.
I got an e-mail the other day about Sotomayor, asking if I knew whose place she had taken at Yale Law. It doesn’t work that way, of course. Yale accepts fewer than 10 percent of its applicants, while at least half would otherwise qualify. Yale gets to use any standard it likes. I’m guessing it accepts, in any case, most summas from Princeton.
But according to The Journal of Blacks in Higher Education, only 29 blacks in 2004 scored 170 or higher — the score needed to get into schools such as Harvard and Yale — on the LSAT. Yes, only 29. It’s easy to say, with some sympathy, that that’s unacceptable. Of course, we know how far sympathy gets you.
Mike Littwin writes Sundays, Wednesdays and Fridays. Reach him at 303-954-5428 or mlittwin@denverpost.com.
