Firefighters on Sotomayor: We did not ask for empathy

Firefighters from New Haven, Conn., told senators Thursday that they felt they had been deprived of their day in court by the cursory way they were treated in a decision by Sonia Sotomayor and two other appeals court judges.

“We did not ask for sympathy or empathy,” said Lt. Ben Vargas. “We asked only for even-handed enforcement of the law.”

The firefighters made their comments a few hours after Supreme Court nominee Sotomayor completed 2-1/2 days of questioning by members of the Senate Judiciary Committee. She appeared well on her way to confirmation.

She has been questioned closely on a range of legal and political issues including Second Amendment gun rights, abortion, property rights, the use of foreign rulings by American judges, and the New Haven firefighters case.

At issue in the New Haven case was whether or not the city discriminated against a group of white and Hispanic firefighters when it threw out the results of an employment exam because no African-Americans scored high enough to qualify for a promotion.

A federal judge ruled against the firefighters, issuing a 78-page decision. On appeal, lawyers for both sides were authorized to file briefs exceeding the usual page limits. Both sides clashed in an hour-long oral argument. But Sotomayor and two other judges dismissed the appeal in a one-paragraph summary order.

Two weeks ago, the US Supreme Court reversed the appeals court, ruling for the firefighters. That decision totaled 93 pages of legal analysis, including concurrences and dissents.

The case has become a political football in Sotomayor’s confirmation hearings, with Republicans attempting to use it as evidence of a pro-minority bias by the judge. Democrats have downplayed the significance of Sotomayor’s role.

The only voices missing from the debate were those of the firefighters themselves – until Thursday.

“Despite the important civil rights and constitutional claims we raised, the court of appeals panel dismissed our case in an unsigned, unpublished summary order,” said Frank Ricci, the lead plaintiff in the firefighters’ suit.

Mr. Ricci is described as suffering from dyslexia. He dreaded taking tests. But he studied eight to 13 hours a day for the promotion test. He spent more than $1,000 on books and paid a helper to record the study materials on tape because he felt he could learn better by listening.

His hard work resulted in a score high enough to qualify for a promotion.

Mr. Vargas tells a similar story of long hours of study and preparation that paid off with a high score. “I was shocked when I was not rewarded for this hard work and sacrifice,” he said.

He turned to the courts for help. “I expected Lady Justice with a blindfold on and a reasoned opinion from a federal court of appeals,” he said. “Instead, we were devastated to see a one paragraph unpublished order summarily dismissing our case.”

Vargas said after the city threw out the exam results, he was forced to choose between “those who wanted promotions based on race and ethnicity, or… those who would insist on being judged solely on their qualifications and content of their character.”

Vargas said he wanted to set an example for his three sons. “I am Hispanic and proud of the heritage and background that Judge Sotomayor and I share,” he said. “But the focus should not have been on me being Hispanic, the focus should have been on what I did to earn a promotion.”

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