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Tuesday, May 26, 2009

Ricci Vs. Destefano and the Selective "Empathy" of Judge Sotomayor

The most controversial case emerging from decisions made by Judge Sotomayor appears to be the case of Ricci Vs. Destefano.

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. (“IOS”) to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the “rule of three,” once test results are “certified,” the Department must promote from the group of applicants achieving the top three scores.

Immediate application of the “rule of three” to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants’ pass rate on the lieutenant exam was approximately half of the rate for white applicants – a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams’ results.

Because of these outcomes, the City’s independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed “adverse impact” and that he could design tests with less disparate results and better measuring the jobs’ requirements. He also conceded that the City’s tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

Eventually, because no one of color scored high enough, the tests were thrown out and a new test was administered. Soon after, the white firefighters that had their promotions reneged sued the city over what is effectively reverse discrimination.

The case eventually wound up in front of Judge Sotomayor and here is how she dealt with it.

Only just recently, in Ricci v. DeStefano, Judge Sotomayor was chastised by fellow Clinton-appointee Jose Cabranes for going to extraordinary lengths to dispense with claims of unfair treatment raised by firefighters. Judge Sotomayor’s panel heard a case raising important questions under Title VII and equal protection law, but attempted to dispose of the firefighter’s arguments in a summary order, until called out by Judge Cabranes. The Supreme Court has agreed to review the case.

Let's leave aside for now the legal and constitutional issues. Where is Judge Sotomayor's empathy for these white firefighers? It's hard enough getting ahead without having to deal with politically correct bureaucracy that decides that your scores aren't good enough because not enough minorities did well with you. These firefighters didn't create the test. They merely did well on it and yet their promotions were reversed because of nothing more than political correctness.

This is a loss in professional stature and income and these firefighters had their lives disrupted. Yet, Barack Obama says that he wants a judge that has empathy. Well clear, she doesn't have empathy for these firefighters. Judge Sotomayor says that she is aware that her rulings have real world effect. Well, what was the effect of her ruling on these firefighters?

Of course, all of this is all nonsense. These firefighters shouldn't have won because someone had empathy for them. They shouldn't have won because the judge understood that they would be adversely affected by a ruling against them. They should only have won because the law was on their side in the matter.

What's absurd is not only the idea that a judge should have empathy or even worse, that Judge Sotomayor has any more than any other judge. She only has empathy for the sort of people that President Obama seems to want to have empathy for. In the case of these white firefighters, her empathy was lacking. Frankly, that would be fine with me if she applied the law. What this case really shows is not only the absurdity of "empathy" in the judiciary and that somehow Sotomayor has any more empathy than anyone else.

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