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Firefighters say the law matters, not empathy

New Haven, Conn., plaintiffs in the lawsuit that Sonia Sotomayor ruled on testify at her Supreme Court confirmation hearing.

July 17, 2009|James Oliphant

WASHINGTON — Frank Ricci -- the named plaintiff in a lawsuit that Republicans have made Supreme Court nominee Sonia Sotomayor's albatross -- said at her confirmation hearing Thursday that "Americans have the right to go into our federal courts to have their cases judged based on the Constitution and our laws, not on politics or personal feelings."

The white firefighter and 19 of his colleagues sued the city of New Haven, Conn., for throwing out the results of a promotion test because it feared the exam had discriminated against minorities.

A trial court dismissed the lawsuit, and Sotomayor was part of a three-judge appellate panel that affirmed the trial court.

Last month, the Supreme Court reversed the ruling of Sotomayor's court in a 5-4 decision. Throughout Sotomayor's testimony this week, Republicans on the Senate Judiciary Committee repeatedly hammered at her handling of the case.

The U.S. 2nd Circuit Court of Appeals panel initially upheld the trial court's ruling in an unpublished order -- and soon amended that to a short, unsigned opinion. Some lawmakers suggested that Sotomayor had sought to bury the case because of hostility toward the white plaintiffs, or even to protect her chances of promotion to the high court. Others complained that her actions exhibited shoddy legal work.

"Judges make mistakes," said Sen. John Cornyn (R-Texas). "I don't necessarily hold it against Judge Sotomayor that she ruled. I don't think she gave it the proper respect and attention that she should."

Another plaintiff in the case, Benjamin Vargas, also testified. He began by congratulating the judge on her nomination and said, "I am Hispanic and proud of the heritage and background that Judge Sotomayor and I share." He told the panel about the sacrifices he had made to study for the test, keeping him from spending time with his three sons.

Vargas echoed a Republican theme heard throughout the hearings -- that a judge's decision should be based on law, not empathy.

Vargas referred to a part of the Supreme Court's Ricci vs. DeStefano decision, in which Justice Samuel A. Alito Jr. wrote that plaintiffs should not expect sympathy from judges, only fairness.

"We did not ask for sympathy or empathy," Vargas said. "We asked only for evenhanded enforcement of the law and . . . we were denied just that."

Sotomayor has said that she followed established law in her judicial circuit and was bound by precedent. The Supreme Court, she said, fashioned a new legal standard for such test-based employment when it decided the Ricci case. She said her panel disposed of the case in such routine fashion because the district court had undertaken a lengthy analysis of the firefighters' claims.

Sen. Arlen Specter (D-Pa.) asked Ricci and Vargas if they thought Sotomayor had acted "in good faith" in adjudicating their claims. Both firefighters demurred, saying they had come to the committee simply to tell their story.


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