On The Eve Of Sotomayor: Ricci Is Irrelevant

Tomorrow, Monday morning July 13, 2009, Judge Sonia Sotomayor begins the hearing portion of her confirmation process. So far, there has been the expected (sadly) partisan yammering on her nomination. Then, on Friday, there suddenly emerged something that might seem to take hold as the focus of the obligatory partisan sniping. Frank Ricci. It came from Dahlia Lithwick at Slate:

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."

From that already tangential report by Lithwick, has come the claptrapping by those wanting to buck up the Sotomayor nomination, unfortunately by mostly liberal voices, that Ricci is now to be tarred and feathered as a "serial plaintiff".

I am in complete accord with Digby:

Ricci may very well have been justified in filing all those law suits against his employers for different reasons. Some people are just unlucky. And it has no bearing on the facts of the case in question, obviously, at least at the apellate level which is where Sotomayor heard it.

But let’s face facts. Mr Ricci is obviously not the tough, manly public servant who was cheated out of his rightful job by a the lazy "you know whos" that free ride on the system. It looks like this guy would be a much better poster boy for tort reform than reverse discrimination. Maybe somebody in wingnut central got the file mixed up.

As far as I can tell, both sides are full of manure here. The Republicans should not be parading Frank Ricci around as if he is significant to the question of the nomination; he is not, it is sheer exploitation, what he personally has to say here doesn’t mean squat. But by the same token, for Democrats to be bringing up the Ricci character assassination tact is contemptible. That history had nothing whatsoever to do with his case as it involves Sonia Sotomayor, nor the facts underlying it from my look at the decisions of both Sotomayor and subsequently the Supreme Court. Beating him up with it is bullying and asinine.

One prior lawsuit the City of New Haven settled by giving Ricci the relief he sought and the award of attorney fees does not, by any convoluted stretch of the imagination, make Mr. Ricci some sort of despicable "serial plaintiff". The fact he contemplated later actions and never proceeded to filing a complaint means nothing either. And it sure as heck is not contained in either the factual statement of Sonia Sotomayor’s decision, nor is it in the facts of the Supreme Court opinion.

By the same token, Mr. Ricci has nothing admirable nor tangible bearing on any argument the Republicans have against the nomination of Judge Sotomayor. The use of him as a front man is cowardly and cheap. It is a shameful and distracting dog and pony show by both sides. They should both knock it off and focus on the legitimate merits.

UPDATE: In light of many of the comments, I thought I should add a little discussion to clarify why Ricci is irrelevant to consideration of Sotomayor’s nomination.

For all those that have not actually read the Ricci decision, it is not that long; you should read it. First off, the case was not about Ricci individually in any regard; as the case was postured in front of Judge Sotomayor and her appellate panel, he was one of a co-equal group of 17 plaintiffs. Ricci’s name by whatever happenstance simply ended up being the first name in the caption. The case is NOT about Ricci, it is about a testing process for the promotion of firefighters in New Haven.

Secondly, Ricci himself was not complaining about the test, nor did he argue that his alleged dyslexia affected his performance on the test whatsoever; that fact and the first lawsuit he filed in the 1990s had nothing to do with the case in front of Sotomayor or the Supreme Court. Nothing could be further from the truth; in fact Ricci was adamant that the test was fair and he strongly thought ought to be determinative in the promotion debate. In fact that is why he was a member of the group of 17 plaintiffs.

  1. Ishmael says:

    Frank the Fireman replaces Joe the Plumber as the Republican plant of the day. The Federalist types are very good at finding these types of “sympathetic” plaintiffs, just like they have been since Bakke.

      • Ishmael says:

        There is an irony, however, that Ricci might not have prevailed in his ADA suit over his dyslexia had he sued after the 2002 SCOTUS decision in Toyota v. Williams, which restricted the scope of the ADA and the duty of employers to accomodate. (Argued by Sol. Gen, as he then was, John Roberts).

      • NelsonAlgren says:

        But by the same token, for Democrats to be bringing up the Ricci character assassination tact is contemptible.

        Who was assassinating his character? No one I know. I think people are just bringing this to lite because Ricci seems willing to play the Republican patsy. I mean why is a firefighter testifying about the law? I don’t get why he is even there other than to make a fool of himself. This isn’t a Clarence Thomas situation(though that seems to be the angle the Republicans are trying to play).

  2. 4jkb4ia says:

    Thank you! This was so obvious that I was making this point over at Balloon Juice earlier today. Later I saw Ginsburg in her interview call Ricci a “sympathetic plaintiff” for whom she would have brought the case if she had been a lawyer precisely because of his dyslexia.

  3. Loo Hoo. says:

    Excuse the OT, bmaz. Sarah.

    The official, the association’s executive director, Nick Ayers, arrived with a memorandum containing firm counsel, according to several people who know its details: Make a long-term schedule and stick to it, have staff members set aside ample and inviolable family time to replenish your spirits, and build a coherent home-state agenda that creates jobs and ensures re-election.

  4. bobschacht says:

    Of interest in the long run:
    News summary forwarded from Susan Serpa:

    Court Says Jose Padilla Can Sue John Yoo
    Court Allows Padilla Suit Against Yoo To Proceed

    Jose Padilla was arrested at O’Hare International Airport on May 8th, 2002, for what the government said was a plot to set off a ”dirty bomb,” a conventional explosive which scatters radioactive material over a broad area. The Fourth Circuit Court, in an opinion written by Judge J. Michael Luttig, upheld the government’s claim that it had the power to hold Americans as ”enemy combatants” indefinitely, but the true test of the executive order’s constitutionality, the Supreme Court, was avoided at the last minute when the administration suddenly released Jose Padilla to the civilian courts for trial. By that time, Padilla had been held for 3 1/2 years in near total isolation in a special wing of the Navy Brig at Goose Creek, South Carolina.

    Notable about the Padilla case is that the government’s allegations changed a number of times. It was first alleged that Jose Padilla, a former Chicago gang member, planned to set off a ”dirty bomb.”

    Later, that allegation was dropped, and the government said instead that Padilla had planned to blow up apartment buildings using natural gas. At his eventual civilian trail, neither of these allegations was even mentioned. In the absence of formal charges, allegations took the form of press releases from the government. Padilla was not allowed to speak to an attorney until 2 years into his confinement, and not until his civilian trial did he have the chance to answer any allegations. The main charge finally filed formally against Padilla was ”conspiracy to murder, kidnap and maim persons in a foreign country” during a visit to the Middle East in 2000, which his lawyers say was for the purpose of studying Arabic and the Koran after a conversion to Islam.

    At his eventual trial, the principle piece of evidence against Padilla was an Al Qaeda ”application form” he had purportedly filled out to attend an Al Qaeda training camp in 2000, complete with a line for ”address for emergency contact (optional).” Defense lawyers argued that Padilla had traveled to the Middle East to study Islam and Arabic, not to participate in violent Islamic jihad. The main supporting piece of evidence for Padilla’s arrest warrant in 2002 was testimony by terror suspect Abu Zubaydah, which was obtained, Padilla’s lawyers claim, under torture by the CIA. The tapes of the Abu Zubaydah’s interrogation are among those which generated controversy when CIA Director Michael Hayden disclosed that the tapes had been destroyed.

    During his 3 1/2 year detention, Padilla’s lawyers said he was subject to hooding, stress positions, assaults, and threats of imminent execution.

    Warren Richey of the Christian Science Monitor reported:

    ”Padilla’s cell measured nine feet by seven feet. The windows were covered over. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla’s lawyer was prevented from seeing him for nearly two years….[Padilla’s captors] punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds.”

    Padilla also stated that he was ”injected with a ‘truth serum,’ a substance his lawyers believe was LSD or PCP. Deprived of any view of the outside world, with the lights always kept on, Padilla had no way of knowing what time of day it was or what day of the week.

    In his affidavit filed during Padilla’s civilian trial, his attorney Andrew Patel said, ”I was told by members of the brig staff that Mr. Padilla’s temperament was so docile and inactive that his behavior was like that of ‘a piece of furniture.’ ” Patel described how it was difficult to work with Padilla in his defense, because ”Mr. Padilla remains unsure if I and the other attorneys working on his case are actually his attorneys or another component of the government’s interrogation scheme.” Padilla was especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day.

    Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit that Padilla ”lacks the capacity to assist in his own defense…During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body.”

    At his trial, prosecutors asked, and Judge Marcia Cooke granted, that no mention be allowed of Padilla’s 3 1/2 years in military detention to the jurors. However, the prosecution was allowed to show, on a wall-sized screen, a 7-minute video of a Bin Laden speech which had nothing to do with the case.

    Court Review Neglects Novel Facts of War on Terror

    Defenders of the government’s actions cite the legal precedent of Ex parte Quirin, which the Fourth Circuit Court of Appeals relied upon to uphold the government’s power to hold American citizens incommunicado, without charges, during war time. However, according to any standard law dictionary, a prior decision must have ”a similar question of law and factual situation” in order to serve as a precedent (Merriam-Webster Dictionary of Law.) In Quirin, a number of German-Americans were held as enemy combatants after being accused of spying for Germany during World War II.

    The Fourth Circuit Court opinion, written by Judge J. Michael Luttig, never addressed any differences in ”factual situation” which might distinguish the traditional form of war, against a nation-state with a tangible army, from the War on Terror, against a terrorist network with no formal hierarchy, no industrial military weaponry, and no national base. In traditional war, at some point, it would be impossible to maintain that the war had not come to an end. The War on Terror presented no such limitations. Soon after 9/11, George Bush took pains to proclaim the War on Terror’s infinite time horizon, by announcing in a speech before a joint session of Congress on September 20, 2001, that it was ”a task that does not end.” The Luttig court made no mention of this difference from previous wars, nor the peril it might pose to the Constitution.

    After his 3 1/2 years of isolation and torture during military detention, Padilla was nonetheless ruled fit to stand trial. His lawyers objected that the isolation and torture had rendered him mentally incompetent, that he was a broken man. He was convicted and sentenced to 17 years in prison regardless. He is now incarcerated at Supermax Federal Prison in Florence, Colorado.

    The most important result of the Padilla case was to firmly establish the precedent that American citizens may be held, tortured, and denied access to the civilian courts indefinitely, upon their designation by the executive branch as an ”enemy combatant,” in the open-ended ”war on terror.”

    Bob in HI

    BTW, I want to protest that my access to the editing tools in the response box are being held hostage in my case to some of the ad features that hang trying to load. I cannot use those editing tools until all ad features have *finished* loading. Current obstacles:

    I can submit a comment before these features finish loading, but I can’t use the editing tools or the preview feature.

    • watercarrier4diogenes says:

      I meant to comment when you posted that (great) piece, bmaz. Weren’t there also some jury shenanigans during the trial that left defense counsel despairing that they didn’t have much chance? I vaguely remember something about all the jurors wearing flags or something, along with a ‘wink and a nod’ toward prosecutors by one female juror (though that could have been a case involving the former head of the NYSE, whose name escapes me).

      • bmaz says:

        Not the Padilla v. Yoo case. I doubt an answer has even been filed yet by the defendants; the June 12 decision was on the attempted immunity assertion by Yoo which is the first step after filing of a complaint such as this. It is a long way from trial.

  5. esseff44 says:

    Thanks for the comments on Ricci. There are two New Haven firemen on the minority witness list which is comparatively short. On the majority side, they have a baseball player.

        • scribe says:

          Not really.

          Cone was the lead union rep for the AL side of the Players’ Union during the 1994 baseball strike and (despite having skipped college to play baseball) is widely regarded as one of the more intelligent players in the game. To paraphrase Yogi Berra about his Yankee roommate, Dr. Bobby Brown, later a cardiologist and president of the American League, Cone’s one of those guys who reads books without pictures. Yogi was contrasting himself by saying he was reading comic books while Brown was snarter because he was reading books without pictures.

          You’ll recall, Sotomayor called the labor law correctly and issued the injunction which broke the owners’ resistance to settling the baseball strike. So, Coney comes on as a former litigant who’s appeared in her court.

          As to Ricci, he’s a clown intended to appeal to the Joe The Plumber/Sarah’s Winking at ME crowd of thought-free Rethugs, and to reinforce the whole affirmative action meme which they’ve been playing the last 30 years.

        • JohnnyTable70 says:

          Cone was a player representative for the MLB PA at the time of the 1994-95 strike. Don’t forget that the owners planned to open the 1995 season using replacement players. Ontario had a no scab law on the books so the teams would have had to schedule Toronto Blue Jays games elsewhere in all likelihood, but Judge Sotomayor quashed that possibility when she ruled in favor of the MLB PA.

      • esseff44 says:

        David Cone. Mr. Cone is a former Major League Baseball pitcher. Fifteen years ago, in August 1994, a 232-day baseball strike began, leading to the cancellation of the 1994 World Series, which was the first since 1904. During the strike, Mr. Cone became one of the players union’s most active and visible members, testifying before Congress in January of 1995 against baseball’s Antitrust Exemption.

        From the witness list on Senator Leahy’s web page.

        • watercarrier4diogenes says:

          So he’s gonna be the official relator of the “She Saved Baseball!!!” story. *sigh* Not that I don’t admire her record and many/most of her opinions, but this is pure kabuki pimping of her background, has zip to do with her qualifications.

          • LabDancer says:

            Oh, come on: someone’s gotta be the modern wise Latina version of Judge Kennesaw Mountain Landis, right?

            I guess the thinking is that the Rejectians will wear themselves down slobbering all over Cone like they did Clemens.

            Not that it’ll matter to the crew on the SJC, but on all the evidence Landis was one of the most reflexively bigoted human beings this side of the Civil War.

  6. watercarrier4diogenes says:

    Two more updates posted to jhutson’s Obama Orders Investigation of Massacre, Alleged Cover-Up story.

    1) Slated for the Monday print edition, the New York Times has just posted a news analysis by Scott Shane, “Obama Faces a New Push to Look Back.”

    Mr. Obama is also likely to face increasing pressure from some of his strongest supporters that Bush administration officials be held accountable for approving what Mr. Obama himself has called torture. The drumbeat of new revelations from the years after the attacks of Sept. 11, 2001, appears unlikely to let up.

    2) The CNN Wire has posted its piece, “Obama orders review of slayings of Taliban in Bush era” — currently the top story on the homepage of CNN.com.

    Interesting words, those… “The drumbeat of new revelations […] appears unlikely to let up.”

    Can anyone here imagine EW letting up? I thought not. 8^)

  7. Justinajustice says:

    Thanks for pointing out how irrelevant Ricci’s litigation history is to the issues before the Sotomayor confirmation hearing. His history is just as irrelevant as his testimony will be.

    I was aghast when I read that some putative Sotomayor supporters were trying to discredit him. What nonsense! Just as nonsensical as the Republicans calling him as a witness in the first place at the hearing.

    Is Ricci going to testify that Sotomayor was personally mean to him during oral argument? I doubt it.

    Did Ricci’s preparation for his firemen’s exam include reviewing and critiqueing all Sotomayor’s decisions involving discrimination and affirmative action cases? I doubt it.

    At most he could testify that he was unhappy with the 2nd Circuit’s decision in his case (3 to 0) and happy that the Supreme Court (5 to 4) reversed it. And, even if he had filed hundreds of frivolous lawsuits, that has no signficance whatever on the question of whether this case was improperly decided and whether Sotomayor is qualified to become a Supreme Court Justice.

    Good heavens, isn’t there a relevance requirement for witnesses — and counter witnesses — at a confirmation proceeding?

    • bmaz says:

      If Ricci was even at an oral argument in the Circuit Court of Appeals, which he may not even have been, he certainly would have had not interaction with the judges on the panel. It is simply absurd for him to be involved by either side in her confirmation process.

  8. TarheelDem says:

    You have indications that the Democrats on the Judiciary Committee are going to attack Ricci with his record of litigation?

    Isn’t that ascribing more fight to Democrats than they have shown in the past decade?

  9. JohnnyTable70 says:

    I have very mixed feelings about Dahlia Lithwick’s story on Ricci. I too am dyslexic, but I have never sued nor tried to use my condition to get favorable working conditions for any employer. I will say I graduated from college and I hold 2 master’s degrees, but I don’t do well on certain kinds of standardized tests.

    If I were Ricci, I would have sought extra time to take the test, but that would have been it.

    Which brings me to a question for New Haven. If minority test takers fared poorly on the exam, were they offered tutoring, extra-help, extra time, or any kind of assistance that might improve their test scores?

    • bmaz says:

      But Johnny that is exactly why the Ricci dyslexia bit is such a gross red herring here.

      For all those that have not actually read the Ricci decision, it is not that long; you should read it. First off, the case was not about Ricci individually in any regard, he was one of a co-equal group of 17 plaintiffs, his name by whatever happenstance simply ended up being the first name in the caption. The case is NOT about Ricci, it is about a testing process.

      Secondly, Ricci himself was not complaining about the test, nor did he argue that his alleged dyslexia affected his performance on the test whatsoever. Nothing could be further from the truth; in fact Ricci was adamant that the test was fair and ought to be determinative in the promotion debate.

      Nelson Algren @32 above – that is true, the Republicans should not be using Ricci either. I said that quite clearly in the post.

      For the foregoing reasons, Ricci is inappropriate as a witness as far as having any probative value for either side in the Sotomayor nomination process. He, his dyslexia and the whole dog and pony show are worthless here. And I understand exactly who David Cone was, and what his interaction with Sotomayor was about, and personally do not think he is much, if any, more relevant than Ricci.

  10. torgo2009 says:

    People miss the whole point. If you design a test and it does indeed test for the knowledge that is related to a job promotion, then race should not be a factor. In short you shouldn’t have to go back and reconstruct an entire test just because a particular group did not pass the test. Doesn’t anyone see how silly this is?

  11. SebastianDangerfield says:

    While I understand a momentary temptation to try to smear Ricci once he decided to allow himself to be paraded around by Republican senators who are eager to race-bait, whoever decided to start pushing this Ricci smear-job out (and make no mistake, Dahlia and others didn’t just dig this stuff up; they were fed it) should be ashamed of themselves. It’s completely irrelevant for the reasons bmaz catalogs. It’s also not even smart politics/public relations. Beating up on Ricci feeds the victimhood narrative. It distracts from the central issues. It gives credence to the idea that Ricci is at all relevant to the proceedings — rather than an excuse tor race-baiting. And, the anti-Ricci narrative is built on premises that buy into certain right-wing frames like ‘litigation abuse’ or the seeking of ’special treatment.’

    Despicable and stupid.

    As Hilzoy put it:


    Really. Just stop.

  12. SebastianDangerfield says:

    Yeah, I expect much more from Lithwick. She is smart and independent-minded, but put her name to an oppo shop hit piece. Despicable.
    I sincerely hope that those pushing this crap out were not members of the White House’s Sotomayor squad (but I’m not laying bets against that possibility).

  13. mui1 says:

    I am uncomfortable with all this because I am from the New Haven. It’s a place full of people who are just what they are (don’t want to use the words eccentric or crazy). But really, the powers-that-be have caused more harm than good in terms of tensions (See New Haven Independent’s series including NAACP backs City in Firefighters Case.) In the national media, noone seems to feel responsible or care about that.
    I will not criticize Ricci or any other local dude or dudette who merely travels their own “Righteous Path/s”. I will say that even some local media (yes you! WTNH “news” channel 8 at 11) have acted very badly by using this case as a platform for right-wing anti-Stotomayor clap trap.

    • mui1 says:

      When I talk about uncaring powers-that-be I am not including NAACP. media and national politicians don’t seem to gave a flying f*ck about who this affects at the local level.

  14. hillvoter says:

    Ricci is rediculous. He is a member of a class of people that must accept that they are going to have to settle for second class citizenship. The constitution doesn’t apply to his race or gender and he needs to accept that or get out of this country.

  15. pbator7 says:

    bmaz is right that Ricci should neither be paraded nor berated–Ricci is off the record. But bmaz is wrong when he says that the Ricci case “is about a testing process for the promotion of firefighters in New Haven.”
    Absolutely not: just as it’s not about Frank Ricci neither is it about
    a testing process. It is about judging disparate impact under the purview of Title VII. Sotomayor along with 4 High Court Justices would agree that
    EEOC standards, following stare decisis in the appellate courts, ought to be recognized and upheld until Congress decides to amend the law. That’s called
    judicial conservatism. What Kennedy et al. produced is a decision based upon sympathetic feelings for poor Mr. Ricci that colored their decision against precedent and for judicial activism.