Kellia’s World – Recommended Reading

Challenging the assumptions we live by — Because I want to.

Weasel or Injured Party?

Posted by skyagunsta on July 21, 2009

In  building a case the prosecutor has to build his case brick by brick  … each piece of evidence is just another building block … but when you look at the bricks at the right angle, the DA will show nothing because he has no case. 

                     “My Cousin Vinny–Vincent LaGuardia Gambini”

Two things startled me during Frank Ricci’s testimony to the Senate Judiciary Committee on Thursday, July 16, 2009.

Frank Ricci’s name and his case before a panel of the 2nd Circuit Court of Appeals is one of the bricks being thrown at Judge Sonya Sotomayor by many Republicans in Congress to derail her nomination to the United States Supreme Court.

Ricci has been at odds with Sotomayor ever since her opinion in Ricci vs. DeStefano, which upheld the ruling of the United States District Court, District of Connecticut, that Ricci and the other plaintiffs were not discriminated against by the City of New Haven when the City threw out the results of their promotions test.  The District Court stated that the City had done nothing improper because it had not thrown out the tests results “based on race.” All applicants took the same test; all results were thrown out and nobody was promoted.  The Court of Appeals affirmed the ruling by the District Court and refused to hear the case over the written dissents issued by Chief Judge Jacobs and Judge Cabranes.

Cabranes hit hard against the ruling by the 2nd Circuit Court panel that had adopted the district court’s ruling because,  in writing their opinion, Cabranes said, the judges made no mention of the constitutional claims of reverse discrimination made by the firefighters against the City of New Haven.

It seems that the City of New Haven decided to throw out the results of the written test for promotion to lieutenant, which Ricci and other plaintiffs had aced, because the City felt the test did not truly measure performance ability. 

The argument in support of the City’s position, as summed up by Emily Bazelton in the article, The Sotomayor Mystery , goes like this:

Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It’s like granting a driver’s license based solely on the written test, only with much higher stakes.   

On listening to Ricci’s taped testimony to the Senate Judiciary Committee, I was struck by his difficulty in reading his statement. He stumbled over his words, and needed to follow his lines with his finger like many kids and even adults who are learning to read often do: left to right, left to right, left to right; one line after the other, the finger becoming like a cursor guiding his reading, keeping him focused and situated. 

What I came to understand later, is that Ricci is dyslexic. Dyslexia is defined by the Merriam-Webster Medical Dictionary as ” a disturbance of the ability to read; broadly: disturbance of the ability to use language.” This new-found knowledge about Ricci confirmed the trouble I thought I heard as I listened to his testimony.  

Further, the American Heritage Stedman’s Medical Dictionary also describes dyslexia as, “a learning disorder marked by impairment of the ability to recognize and comprehend words.”  This fact explains why Ricci stated that he had to study harder than ever to pass his test for promotion in the New Haven Firefighters Department.

How would dyslexia affect Ricci’s performance as a fire lieutenant?

(I am also puzzled that while the initial video I linked to on c-span showed Ricci tracing his words with his finger and stumbling over some of his words, the video on the c-span archive now, freezes the image of the Ricci’s testimony on Wade Henderson, President and CEO of of the Leadership Conference on Civil Rights, at about 35:11 into the tape just as Henderson is finishing his testimony and Ricci is about to begin his. 

This new video tape maintains the Wade Henderson image throughout Ricci’s testimony to the Senate Judiciary Committee, and also gives a flawless audio presentation of Ricci statement to the Committee. 

How did that happen when it was not so on the original tape?)

Rejection of anyone for any reason, be it race, gender, religion, weight, sexual preference, whatever the reason for the rejection is, is undoubtedly painful, as anyone who suffers a disability and is on the receiving end of it knows full well. 

However, how people react to the pain of disability, rejection and/or discrimination really depends on the person’s ability to deal with that pain.

Some deal with it by looking within the self, accepting the limitation and working with it in whatever way they can towards minimizing the limitation.

In studying harder than he ever had, Ricci did some of that.

Others choose to cast blame and have an outer directed focus. Fault lies with the other person and not with the self. In deciding to sue, Ricci seems to have some of that as well.

In 1995 he made use of his dyslexia to claim “discrimination” against him by the City of New Haven for failing to hire him as a firefighter with their Department. 

I think that was Ricci’s way of dealing with his pain and circumstance… and that seems to be Ricci’s way of dealing with his pain whenever he thinks his dyslexia has gotten in his way, as he did again in 1997 against the Middletown South Fire District for dismissing him from their Department. (See here.) And as he did again in 2004 when his promotion to lieutenant was denied in the case which has now made all the headlines.

Be all that as it may, on July 16th, Ricci presented himself to the Judiciary Committee, and to the rest of the country in what might have been a cry for sympathy for his disability, as a model of virtue and as a straight shooter who, “studied harder than ever [he] had before”, to prepare himself for the promotions to lieutenant test administered by the City of New Haven, through “listening to prepared tapes, making use of flash cards, reading again, highlighting, and going before numerous panels to prepare for the oral part of the exam,” all at the expense of having to neglect his role as husband and father. 

He portrayed himself as a man making a worthwhile sacrifice on the way to climbing one more rung on the ladder to the American Dream, but when something went awry in his upward climb, Ricci once again went the “file a lawsuit” way.

The Constitution gives Ricci that right, but what was really motivating Ricci to go the lawsuit way? Was it a hurt ego, or hurt self-image? Or was he truly being discriminated against?

He claims that he and others were denied the promotion to lieutenant that acing their tests had earned them, because the City of New Haven, in 2004, felt that not enough minorities would be promoted and that the city would have to pay too high a political price for complying with Title VII, Civil Service Laws and the New Haven Charter, so it chose to promote no one.

He also claims that the Court of Appeals panel that ruled against the Firefighters in Ricci, did so, “in an unsigned, unpublished, summary order that mentioned my dyslexia, leading many to believe that” the case was about “me” and about “my disability and not about the important civil rights and constitutional claims we raised.”

So is Ricci here using his dyslexia and personal pain to excuse, or explain, why Ricci vs. DeStefano was taken all the way up to the Supreme Court where the decision of the panel of the 2nd Circuit Court of Appeals was reversed?

Frank Ricci has made much of the need for court cases to be decided based on the Constitution and the rule of law. He states, “Americans have the right to have cases judged based on the Constitution and on our laws — not on politics or personal feelings …” implying, as have those Republicans Senators and right-wing pundits, that the case before the 2nd Circuit Court of Appeals was decided against him based on Sotomayor’s politics and/or personal feelings, rather than the rule of law and the application of judicial precedent to his case, as Sotomayor has repeated over and over and over again.

Despite Ricci’s use of words like, “the need to adhere to the rule of law,”  he turns a totally blind eye to the fact that when the Appeals Panel of the 2nd Circuit issued their ruling in Ricci, they did so guided by the use of facts, LEGAL PRECEDENT and the rule of law as their compass with which to reach and issue their opinion. 

Like the many Republicans on the committee, including fellow witness Linda Chavez, Ricci paints Sotomayor as a woman who rules by her feelings, a Latino judge who skipped over precedent and issued her opinion in Ricci  based on a bias (reverse discrimination) against him.

Should Ricci be entitled to his promotion no matter what? 

Should Sotomayor have written her opinion differently? Should she have provided for a different outcome even if, in doing so, she would have gone against set precedent?  Should she have gone against the rule of law so touted by Ricci as the rule of law was when she issued her opinion?

At one point in his testimony, Ricci states, “this case had nothing to do with that,” meaning his disability.

He emphasized that the case “had everything to do with making sure our command officers were competent to handle the call and our right to advance based on merit regardless of race.” 

Then he continues,  “the lower courts’ belief that citizens should be reduced to racial statistics is flawed …” But, wait a minute, wait a minute, wait a minute!

Didn’t Ricci just say that the court’s ruling was based on his dyslexia, thus making the case one about his disability and not about reverse discrimination as he n ow claims? Does that not imply that at no time Sotomayor’s opinion was one based on race?

Doesn’t the fact that important civil rights and constitutional claims are missing from the opinion the appellate panel, as Cabranes stated, make it clear that the opinion issued by Sotomayor was not based on racial bias, personal feelings, or personal politics? 

Why is Ricci switching now and making it seem as if the ruling issued on his case was based on racial statistics rather than disability as he initially claimed? 

Has Ricci’s dyslexia switched tracks on him unawares?

In the beginning of his testimony Ricci states that, “this is not a job that can be handed out without achievement, merit and qualifications …”

With the Senate and the public having seen Ricci struggle with his oral presentation, should be: would  dyslexia contribute in any way to Ricci’s making an erroneous call in the midst of a fire emergency?  The Slate article  above describes Ricci as, “a 34 year old trukkie [who] throws ladders, breaks windows, and cuts holes for New Haven’s Truck 4.” 

In the step-up position of commander in the field, having to assume responsibility for directing traffic, and other measures to ensure public safety, would Ricci’s dyslexia, in any way endanger the public or his fellow firefighters?

Was that the question that the panel had to give answer to, rather than a question of race?

It seems to me that if the rule of law does not conform to Ricci’s goal, then he is the one who makes use of feelings and the political spectrum within a court of law to justify his cry of injustice towards himself.

The second point that also startled me during Ricci’s testomy to the Senate Judiciary Committee was his answer to Senator Arlen Specter of Pennsylvania. 

“Specter: Do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in your case?

“Ricci: That is beyond my expertise. I am not an attorney or legal scholar. I can’t answer that.”

Come on Ricci. Sen. Specter is not asking you to judge the legality of Sotomayor’s ruling. The Senator is asking whether you believe Sotomayor acted in anything other than good faith in reaching her decision in your case. 

Should Sotomayor have ruled differently in the Ricci case? 
Should she have overlooked set precedent and given an opinion benefiting Ricci?

Did she have the power to set new precedent like the Supreme Court did in negating the 2nd District Court of Appeal’s Decision?

It seems to me Ricci knows that the answer would be that Sotomayor acted with the best of good faith and judicial propriety in reaching her decision in his case. However, in admitting to Sotomayor’s good faith, Ricci would have to admit to some degree of his own weaselness.

Perhaps that is something that as the new standard-bearer for the white man, for the cause of his own advancement in the City of New Haven Firefighting Department, and as America’s new hero, Ricci may not want to do. 

When the question of character arises, one has to ask does Ricci possess the character associated with a straight shooter and a qualified leader?

The answer might surprise many.

Perhaps there is a certain vindictive trait to Ricci’s character. Perhaps he feels that, if you hurt me, I am going to hurt you back, as in, if you don’t hire me, I’ll sue you. If you fire me, I’ll sue you, and if you injure me with a legal opinion, I am going to throw a brick at your opinion and your career.  

Oerhaps that is what a few of the Senators on the Republican side realized. Perhaps that is why a few of the staunchest Republican Senators have already announced that they will be voting in favor of Sotomayor’s confirmation. Perhaps that is something that the Democratic Senators on that committee already knew based on the integrity of Sotomayor’s record. 

Just perhaps …


5 Responses to “Weasel or Injured Party?”

  1. Skyagunsta said

    In the end, Sen. Lindsey Graham looked at the bricks his own colleagues on the Republican side stacked up against Sotomayor’s nomination. He looked at the bricks from the right angle and saw they did not hold up to the truth of Sotomayor’s career. He saw the republicans had no case agains Sotomayor. He voted in favor of her confirmation. He did the right thing. The rest of the Republicans on that committee, who, uttered bitter complaints against Sotomayor for what they said was her need to rule from personal politics and feelings, are the ones who made use fo their personal politics and feelings to vote against Sotomayor’s nomination. Their arguments did not hold water, did not a case against her make, it just simply did not pass the smell test. Thank you Lindsey Graham for looking at the bricks, stacked against Sotomayor, at the right angle.

  2. Professor Jeffrey A. Van Detta said

    This posting sadly perpetuates a myth and misunderstanding that is fundamental to then-Judge, now Justice, Sotomayor’s role in the 2d Circuit’s opinion in Ricci. It is not HER opinion. It is the opinion of the THREE JUDGE panel on which she sat. And if you do a bit of digging (e.g., at any of the judicial biographies online), you’ll find that she not only was just one of THREE judges, she was the MOST JUNIOR judge on the panel — junior to Judges Pooler and Sack. And — most importantly — Sonia Sotomayor was NOT the PRESIDING JUDGE for the week of oral arguments in the case calendar on which Ricci appeared. The Presiding Judge was Rosemary Pooler. Why is that important? Well, as I can tell you from my own experience (1987-1988) as the judicial law clerk to one of the 2d Circuit Judges, it is the PRESIDING JUDGE who takes the lead in [a] suggesting opinions to be presented as summary orders and [b] WRITING the summary orders in his/her chambers. I’m confident that’s what happened here. It is a long, venerable tradition in the 2d Circuit. Believe me, many is the Friday afternoon after a week of argument where my judge presided that I was still at Foley Square, working furiously to get the summary orders from that week done and filed in the clerk’s office! Yes, of course, Judge Sotomayor, like Judge Sack, had to concur with Presiding Judge Pooler about [a] using the summary order format rather than a published opinion and [b] the content of the summary order that was drafted in the Ricci case. But to present this process as it has been presented here, and in most of the press, is to distort it beyond recognition and quite misleadingly suggest that Sonia Sotomayor was the quarterback or architect of something that she was in fact, only one of three participants, and not the leader of the pack, either. I will add that many, many cases are disposed of on summary orders in the 2d Circuit — and in this case, since the panel — wisely or not — decided it agreed with the District Judge’s decision, what point is there in rehashing that opinion just to put their names on it.

    I will say, however, that the obscene brouhaha raised over this has illuminated something that I didn’t understand 22 years ago, but do now. In the well-known Yonkers desegregation cases brought by the U.S. Justice Dep’t in the 1980s, Distict Judge Leonard Sand wrote some of the most well-organized, and comprehensive opinions you’ll ever see — they are models. Thus, when the City appealed from his opinions and judgment, I was surprised that the panel on which my judge sat decided to re-hash the whole thing in a Circuit opinion that exceeded 150 pages in draft. Since Judge Sand’s ruling were being affirmed in their entirety, I did not understand why we were duplicating Judge Sand’s work. Now, I do. In cases that are–or become–hot political buttons, the Circuit has to go through the suffering, or face criticism on absurd grounds. I doff my hat to the Presiding Judge on that panel of two decades ago, Amalya Kearse. Judge Kearse made a great call in that case — and saved all of us plenty of grief as a result. (A Carter nominee, Judge Kearse was one of the finest and most professional legal minds I’ve ever seen — I loved to watch her preside over an argument — it was respectful, but pointedly regal. It is sad that Bill Clinton did not use one of his two opportunities to fill a Supreme Court vacancy to nominate Judge Kearse. A true opportunity lost.)

    I elaborate some of these ideas further in a forthcoming (Vol. 13, Spring 2010) article in the Barry Law Review, “The Decline And Fall Of The American Judicial Opinion, Part II: Back To The Future From The Roberts Court To Learned Hand–-Segmentation, Audience, And The Opportunity Of Justice Sotomayor.”

    • Skyagunsta said

      Thank you for your illuminating post. Too bad it comes after the Republicans bad mouthed Sotomayor all they wanted.
      Too bad, it too, comes when this blog will cease as of October 1st. Nevertheless, I do appreciate the wisdom of your reply to my posting. Skyagunsta Pickens

      • Professor Jeffrey A. Van Detta said

        I’m saddened to learn the blog won’t continue. You provided very valuable information on Mr. Ricci’s testimony, for which I’d wanted to cite your blog in my article! Your dissection of important parts of his testimony is most helpful.

        Of course, all the members of the Senate Judiciary Committee, whether personally,or by virtue of their staff, know how the Ricci panel worked. Neither side bothered to clarify it, assuming most people wouldn’t have the patience to listen or care enough to want to know how an appeals court really works. The fact that they all knew this, and pretended it doesn’t exist, makes it all the more egregious, on both sides of the aisle.

      • Skyagunsta said

        How very sad that politicians who know better, on any subject, just don’t bother to be honest simply because it is expedient, or because it suits their political purpose. This is exactly the same thing that they are doing with their claim of healthcare reform.

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