(This was written when President Obama nominated Judge Sotomayor for the Supreme Court and before the Supreme Court decided Ricci v. DeStefano-the New Haven Firefighters case.)
"Don’t tell me what the law is. Tell me who the judge is.”-Roy Cohn
"You may have the cash, but you can't cash in your face"-Stevie Wonder
President Obama just nominated Sonia Sotomayor for the Supreme Court. Truth be known, one of the happiest moments of my life involves Judge Sotomayor. She was the commencement speaker at my law school graduation at Lincoln Center. She actually handed me my law school diploma. Here is what happened: my name was announced and a Brooklyn roar was heard throughout Avery Fisher Hall. I stepped up to Judge Sotomayor, she gave me my diploma and commented on the roar: "It sounds like you have a lot of friends". It was a very nice thing to say. She was very gracious, and I thanked her.
So I have to say, she was very nice to me. Ans she is by all accounts, a decent person. But that should not enter into the equation on whether she should sit on the Supreme Court, should it? I think a more important question is "Did she provide Frank Ricci with the justice he deserves? Sadly, the answer to that question is "no". And because of that answer, I would vote against confirming Judge Sotomayor to sit on the Supreme Court.
Remember Frank Ricci? I wrote about him a few weeks ago. Frank is one of the "New Haven 20"- firefighters who passed the New Haven fire department test to become a lieutenant. Of the 20 that passed, 19 were white and one was Hispanic. No blacks passed the test (28 blacks took the test).
Frank has been a member of the New Haven fire department for 12 years. His dream was to become a lieutenant in the department. Frank is dyslexic, so to prepare for the test, he bought $1000 worth of books,and had a friend read the books into a tape recorder. Frank listed to the tapes and quit his second job-sacrifices made in pursuit of a dream.
When Frank received the news that he had passed, it was one of the happiest days of his life.
But Frank's elation was short-lived. How was Frank to know that the promotion he worked so hard for would be taken away just because he was white?
You see, The City of New Haven did not like the results of the test,so the city fathers simply through the test results out. Did New Haven find that the questions on the test discriminated against blacks? No it did not.(In fact, the city hired an outside consultant to ensure that the test was job related, and not racially biased.) New Haven just did not like the fact the only white firemen passed the test. And that was that. So they dismissed the test results, and denied these 20 men the promotions, that but for the color of their skin, they rightfully earned.
In a case called Ricci vs. DeStefano, the New Haven 20 sued in Federal Court, stating they were denied promotions because of their skin color- which violates the equal protection clause of the 14th Amendment. New Haven's defense? Incredibly, they did not say the test was discriminatory towards blacks. Instead, New Haven said they knew the City would be sued if they did not promote any blacks, so they threw out the tests only because a sufficient amount of blacks did not pass. (The last time I checked, the threat of future litigation was not a sufficient reason to deny an American citizen his/her constitutional rights.)
What did the Federal District Court rule? Why, the District Court said that Frank Ricci and the boys were not discriminated against when New Haven threw out the rest results! Check out the crazy logic of the judge: Frank Ricci was not discriminated against because the blacks who failed the test were not promoted to lieutenant either! It's like telling Carl Lewis after winning an Olympic Gold Medal Race and having the results thrown out: "We threw out the results because a white person did not win, but we did not discriminate against you Carl, because we did not declare any of the white's who lost the race a winner either. "
What kind of logic is that?
After losing in the lower Court, The New Haven 20 filed an appeal in the 2nd Circuit. (The 2nd Circuit hears appeals of Federal District Court decisions that come from New York, Connecticut & Vermont.)
And here is where Frank Ricci's world intersects with Sonia Sotomayor.
Sotomayor was one of three judges on a panel that heard the appeal. However, "heard" is too strong a word. The three judges hid under their desks and issued a 1 paragraph unsigned opinion affirming the District Court. Sotomayor could not even bring herself to address the core issue presented: Were these firefighters denied equal protection of the law?
The 1 paragraph decision was designed to bury the issues presented in this case, and hide it from Supreme Court review.
The decision was so out of judicial bounds, and went so far out of its way to bury the firefighters’ important claims of unfair treatment that Sotomayor's colleague, Judge Jose Cabranes, a Clinton appointee, chastised her.
According to Judge Cabranes, Sotomayor’s opinion “contains no reference whatsoever to the constitutional claims at he core of this case” and its “perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”
The master-plan to hide this case from the Supreme Court back fired. The lack of judicial analysis by Sotomayor in this crucial case drew scrutiny, resulting in the Supreme Court taking the case, and a final decision will be handed down by June 26.
The New Haven 20 case tells me everything I need to know about Judge Sotomayor. If you cannot recognize that these firemen were denied a promotion because of the color of their skin, and that our constitution forbids such a practice- you do not deserve a seat on the highest court in the land.
The fact that President Obama would choose someone who would sign on to such a bigoted opinion indicates that the teachings of Reverend Wright might make it to the highest court in the land- a judicial swine flu that has infected this nation for far to long.
President Obama's plan for bringing America together does not include the Frank Ricci's of this country, and Sonia Sotomayor has already proven to be a loyal foot solider by denying Frank his constitutional rights.
I don't know about you, but I want judges who want to get us out of this sordid business of dividing Americans up by race.
What's right is what's just in the Ricci case.