Inconvenient News,
       by smintheus

Saturday, July 11, 2009

  The Anita-Hillification of Frank Ricci

When Anita Hill was set to testify at Clarence Thomas' Senate confirmation hearings in 1991, reactionaries feared that her comments would be unhelpful to Thomas and promised to demonize her. For example, here was GOP Senator Alan Simpson:

"She will be injured and destroyed and belittled and hounded and harassed, real harassment, different from the sexual kind, just plain old Washington variety harassment."

Now many self-styled 'liberals' appear intent on demonizing an upcoming witness in Sonia Sotomayor's confirmation hearings, firefighter Frank Ricci. The reason again this time is that the testimony might be unhelpful to the nominee.

In the last few days there has been a surge on line of poorly reasoned and tendentious commentaries whose purpose is to depict Ricci as overly litigious ("Ricci...then sued, yet again") and even as hypocritical ("Ricci was singing the opposite tune"). This operation has involved a classic whispering campaign:

Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who's at the center of Sotomayor's most controversial ruling.


On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.


No People for the American Way officials could be reached Friday to speak on the record about the press campaign.

What none of those involved in the campaign seem to acknowledge is that (a) there were fully 18 firefighters who brought suit against New Haven, and (b) at issue in the confirmation hearings is not the motives of any of the plaintiffs but rather Sotomayor's controversial decision to agree to a summary judgment in that case. The NYT's Adam Liptak described that decision as "remarkably cursory" and "baffling". Many commentators and jurists (including it seems the entire Supreme Court) fault that summary judgment as wholly inadequate to the case.

The appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.

There is evidence that the three judges in the case agreed to use a summary order rather than a full decision in an effort to find common ground.


The district court judge in New Haven, whose opinion the appeals court panel affirmed and adopted, did identify three earlier Second Circuit decisions concerning the use of race by the government in hiring and promotional exams. But they did not involve precisely the same issues.


In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

Such a 'compromise', however, would appear to be in violation of the 2nd Circuit's own rules, which require that summary judgments be used only "in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion". Ricci v. DeStefano seems like a classic instance where major legal issues needed to be resolved, there being no clear binding precedents. Thus a summary judgment would have been inappropriate.

That is the issue that Sotomayor's advocates wish to cloud by attacking the lead plaintiff, Ricci. Like the other plaintiffs, he obviously thinks he has a legitimate grievance given that Sotomayor's three-judge panel heard lengthy arguments in the case but then dismissed it without even providing a clear justification.

As for the question of Ricci's motives, it's irrelevant whether or not his own resentment of wrong-doing is too finely calibrated. Despite Dahlia Lithwick's injudicious attempt to portray Ricci as a serial litigator, the fact is that he has brought suit only twice. None of those who are lambasting Ricci as a troublemaker have much at all to say about the facts of his 1995 suit against the New Haven fire department. The most awkward fact, for his critics, is that the city settled the suit completely in Ricci's favor in 1997 before it went to court. Even as a 20-year-old, it seems that Ricci was unusually well qualified and highly praised as a firefighter. The entire basis for Ricci's earlier suit was that he'd been discriminated against illegally because of his dyslexia. His later, more famous suit also centered on a claim of illegal discrimination. Whatever the merits of the cases (both of which Ricci won), those are consistent points of view and very far from hypocritical.

The fact that Ricci also once was fired in another Connecticut town in 1998 and then filed a complaint with the state Labor Department, which he lost, tells us little by itself. Ricci claims that he was fired for investigating safety violations. The town was fined for such violations subsequently. It's not always easy to win disputes before labor boards, and even harder to prove that firings were due to retaliation. We'd have to know many more details in this episode to have any chance of clarifying what actually happened - much less gauging whether Ricci behaved responsibly. I suspect that in different circumstances – that is to say, if his critics were less unsympathetic to him – they'd be perfectly happy to apply the term 'whistleblower' to Ricci in regard to his 1998 complaint.

It's pretty sad that ordinary citizens can't testify about their knowledge of high-profile judicial nominees without calling down ideological wrath upon themselves.

crossposted at

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