anything), but don't hold your breath'> anything), but don't hold your breath'> anything), but don't hold your breath'>

-- Dahlia Lithwick, on Slate.com (see below)



by Ken



JURISPRUDENCE

Fire Proof

The New Haven firefighter is no stranger to employment disputes.



By Dahlia Lithwick

Posted Friday, July 10, 2009, at 6:50 PM ET



Republicans on the Senate Judiciary Committee have announced that Frank Ricci , the firefighter who recently prevailed in his "reverse discrimination" lawsuit against the city of New Haven, Conn., will testify at Sonia Sotomayor's confirmation hearings. Ricci has become a sort of folk hero for white men everywhere, having dared to stand up against the evils of affirmative action and race-based employment preferences. Next week, he will be called on to make the point, as David Paul Kuhn put it, that Sotomayor, for all her talk of empathy and the real-world impact of judicial decisions, "demonstrated no empathy for the 'real-world consequences' of affirmative action on Ricci."



Ricci is invariably painted as a reluctant standard-bearer; a hardworking man driven to litigation only when his dreams of promotion were shattered by a system that persecutes white men. This is the narrative we will hear next week, but it somewhat oversimplifies Ricci's actual employment story. For instance, it's not precisely true, as this one account would have it, that Frank Ricci "never once [sought] special treatment for his dyslexia challenge." In point of fact, Ricci sued over it.



According to local newspapers, Ricci filed his first lawsuit against the city of New Haven in 1995, at the ripe old age of 20, for failing to hire him as a firefighter. That January, the Hartford Chronicle reported that Ricci sued, saying "he was not hired because he is dyslexic." The complaint in that suit, filed in federal court, alleged that the city's failure to hire Ricci because of his dyslexia violated the Americans with Disabilities Act. Frank Ricci was one of 795 candidates interviewed for 40 jobs. According to his complaint, the reason he was not hired was that he disclosed his dyslexia in an interview. That case was settled in 1997 with a confidential settlement in which Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney's fees.



In 1998, Ricci was talking about filing lawsuits again, this time over a dispute with his new employer, Middletown's South Fire District -- which had hired him in August of 1997. According to a Hartford Courant report of Aug. 11, 1998, Ricci was dismissed from the Middletown fire department after only eight months. He promptly appealed his dismissal, claiming that fire officials had retaliated against him for conducting an investigation into the department's response to a controversial fire. A story in the Hartford Courant dated Aug. 9, 1997, has Ricci vowing "to pursue this to the fullest extent of the law."



In August of 1998, a state Department of Labor investigation cleared Chief Wayne S. Bartolotta of any wrongdoing in the firing. The Aug. 3, 1998, letter from the state Department of Labor indicated that the case was closed with a finding of no violation. "After a thorough investigation, it was determined that the South Fire District did not discriminate against Mr. Ricci." Ricci's response? According to the Courant, Ricci contended "Their decision was political, it has nothing to do with who was right and who was wrong." He told the paper he would "pursue the matter in civil court."



Ricci also tried to discredit his former boss, Chief Bartolotta, by disparaging his professional credentials. His fight over access to Bartolotta's professional training records was resolved between the two of them a week before the matter was slated to be taken up with the state Freedom of Information Commission, according to a Jan. 13, 1998, report in the Hartford Courant.



Eventually, Ricci made his way back to the New Haven Fire Department, where he famously aced his promotions test, then sued, yet again, in 2004.



Ultimately, there are two ways to frame Frank Ricci's penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white. If that is so, we should all be deeply grateful for the robust civil rights laws that protect Americans from unfair discrimination in the workplace. I look forward to hearing Republican Sen. John Cornyn's version of that speech next week.



The other way to look at Frank Ricci is as a serial plaintiff -- one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command. That's not the typical GOP heartthrob, but I look forward to hearing Sen. Cornyn's version of that speech next week as well.



When Frank Ricci testifies against Judge Sotomayor, it will be worth recalling that under any other set of facts he would have looked to his GOP sponsors like the kind of unscrupulous professional litigant Rush Limbaugh lives to savage. Is America's conservative movement really ready for an anti-affirmative action hero who has repeatedly relied on the government to intervene on his behalf to win him -- and help him keep -- a government job?



Was He The Culprit?



by Paul Bass | June 29, 2009 2:45 PM



Three of the Supreme Court justices who voted against New Haven in Monday’s landmark firefighters case ruling zeroed in on one character they saw playing a nefarious role: the Rev. Boise Kimber.



In fact, Kimber’s role as a New Haven politico, felon, and FOJ (Friend of John, Mayor DeStefano) ended up sparking a lively debate between the Supreme Court’s conservative and liberal wings. . . .



Justice Samuel Alito singled out Kimber in a concurring opinion to Ricci v. DeStefano, the case in which a 5-4 majority ruled that New Haven can’t ignore the results of a fire department promotional exam just because no African-Americans scored high enough. . . .



From the start, the New Haven 20 — the one Hispanic and 19 white firefighters who sued to have the exams’ results honored — argued that New Haven’s DeStefano administration scuttled the test because of political pressure. And they specifically mentioned Kimber in their lawsuit. Rev. Kimber, a prominent vote-puller for Mayor DeStefano in past elections, sits on the Board of Fire Commissioners. He played a vocal role at the Civil Service Commission in arguing to have the test results ignored.



Alito, in an opinion also signed by Justices Clarence Thomas and Antonin Scalia, noted that “even the District Court” (the lower court that ruled on behalf of the city in this case) “admitted that ‘a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.”



The opinion proceeds to present a three-paragraph attack bio of the good reverend, going back decades over terrain familiar to Kimber’s New Haven critics. . . .



Justice Ruth Bader Ginsburg, who sided with the city in the case, takes on Alito’s Kimber-bashing in a dissenting opinion. She argues that Alito “exaggerates” Kimber’s influence and his role in “engineering” the outcome.



She notes how Alito “recounts at length the alleged machinations of Rev. Boise Kimber (a local political activist), Mayor John DeStefano, and certain members of the mayor’s staff.”



She then points out that neither Kimber nor the mayor’s staff made the call to disregard the exam results. The mayorally appointed Civil Service Board, “an unelected, politically insulated body,” in Ginsburg’s telling, made that decision.



She calls it “striking that Justice Alito’s concurrence says hardly a word about the CSB itself, perhaps because there is scant evidence that its motivation was anything other than to comply with Title VII’s disparate impact provision.”



And, she points out, the firefighters union — another politically influential group — was just as vocal on the opposite side as Kimber.



“The real issue, then, is not whether the mayor and his staff were politically motivated; it is whether their attempt to score political points was legitimate (i.e., non-discriminatory),” Ginsburg writes. “Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit?”



Yale law professor Drew Days (pictured) said Monday that Ginsburg “got it right.”



Alito et al. made Kimber “the main culprit in the story,” said Days, who argued cases before the Supreme Court as President Bill Clinton’s solicitor general.



But that’s jumping to a unproved conclusion, Days said: “Whatever people in New Haven might think about all this, the political process is rough and tumble. If people don’t like what the city does or is about to do, they make a lot of noise. Is the city trying to make sure its constituents are being heard? Or are they pandering and doing something that is illegal to get political support?"

#

Tomorrow the Senate Judiciary Committee begins hearings on the nomination of one of the country's most experienced and respected federal Appeals Court judges, Sonia Sotomayor to replace retiring Justice David Souter as an associate justice of the Supreme Court. How strong the opposition will be remains to be seen, but the ugliest, most reactionary and bigoted pustules within the Republican Party are marshaling whatever strength they have behind SJC Ranking Minority Member Jefferson Sessions, a lifelong confirmed racist These people are representatives of truly the vilest, most hating, and most hateful people in the country. If they can get away with the assault of ignorance and savagery they have the power to unleash, it's unlikely to derail the Sotomayor nomination, but if they show any serious strength, they will not only defame an impeccably credentialed judge but create a poisonous climate for the next person nominated to the High Court.As I keep pointing out, these are people with no regard for truth. They are people who appear literally incapable of intellectual or moral honesty or decency, but spend their lives trying to drag the rest of society down to their level of spiritual degradation. It has been obvious from the start that they don't give the tiniest damn about Judge Sotomayor's actual qualifications or even beliefs. They guessed correctly that she isn't another wizard in the white-corporatist-supremacist tradition of Chief Justice John Roberts and Justice "Sammy the Weasel" Alito, who got through their confirmation hearings by lying their heads off under the protection of the the Judiciary Committee's then-majority Republicans.The Republicans have done nothing but lie ever since. They were never interested in evaluating Judge Sotomayor; they were only interested in a desperate search for "gotchas" in her background. What they came up with is so pathetic that they're lucky they're also incapable of shame.The attack on her off-the-cuff comment about policy being made at the Court of Appeals level simply displays their total ignorance of the workings of American government; it has nothing to do with "activist" judging, it's just a fact. (It would be helpful to remember that the "activist" judges today are the rampaging ultra-right-wingers on the Supreme Court: Roberts, Alito, and Justices Nino Scalia and Clarence Thomas.) Her comment about bringing a distinctive perspective to the Court as a Latin woman is again the merest and most obvious statement of fact; every Supreme Court justice brings his/her particular background to bear, which is why we need a diversity of representation. Former Justice Sandra Day O'Connor as well as Justices Thomas and Alito made virtually identical statements.And then there's the Ricci case, in which the Supreme Court has only just overturned the Circuit Court panel opinion in which Judge Sotomayor sided with the majority, ruling that the city of New Haven was within its legal rights, based on existing law, to abandon the firefighters' promotion exam in which no minorities received a passing grade and plan a future retest.To Rush Limbaugh the Ricci case is proof that Sonia Sotomayor is a racist, but then, Rush Limbaugh lies for a living, and takes no prisoners. No one of any legal competence has suggested that Judge Sotomayor or the rest of the panel majority were legally wrong. They did their job reading the existing case law.Now a bit of digging has turned up an interesting wrinkle on the Ricci case. It appears that the intrepid Frank Ricci, to white racists everywhere the hero of this drama of vile discrimination against an oppressed white man, has amazingly selective contempt for anti-discrimination laws.At this point, I'm going to turn the floor over to Slate.com's veteran Supreme Court correspondent, Dahlia Lithwick (for links click through to the onsite post):Our attention has been called to this interesting report by the's Paul Bass in the wake of the Ricci ruling:

Labels: Dahlia Lithwick, Frank Ricci, Rush Limbaugh, Sonia Sotomayor, Supreme Court