Poster child for Sotomayor critics has litigious history

by desmoinesdem, Sun Jul 12, 2009 at 03:48:24 PM EDT

Republicans plan to have New Haven firefighter Frank Ricci testify during Judge Sonia Sotomayor's upcoming confirmation hearings. Ricci's story has become a focal point for opponents of Sotomayor, because the Supreme Court recently found in his favor in a 5-4 decision that overruled a 2nd Circuit Court of Appeals decision involving Sotomayor. (Of course, Sotomayor's critics don't acknowledge the bigger picture of her rulings in race-related cases.)

It turns out that Ricci's quite the veteran of employment lawsuits. He sued the city of New Haven in 1995, claiming that he was discriminated against because of his dyslexia, in violation of the Americans with Disabilities Act. Ricci also went to court to fight his 1998 dismissal from Middletown's South Fire District.

Dahlia Lithwick concluded at Slate,

Ultimately, there are two ways to frame Frank Ricci's penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white. [...]

The other way to look at Frank Ricci is as a serial plaintiff--one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command.

Or as TPM-DC's Brian Beutler observed,

[Ricci's] views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.

My hunch is that we won't hear much about Ricci's litigious history during the cable tv coverage of the Sotomayor hearings.

Tags: Discrimination, Frank Ricci, ricci, SCOTUS, Sonia Sotomayor, Supreme Court (all tags)

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36 Comments

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Re: Poster child

"[Ricci's] views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't."

At the risk of stirring some racial trouble, I would say that sums up nicely the great bulk of whining I hear from white counterparts about things like affirmative action.

They have no problem with their own unfair advantages (the uncle that gets them their first job, the boss who sets up meetings with clients because they come from the same neighborhood in Long Island or the any number of other abuses I have seen. However, heaven forbid someone give me a leg up. Then, its jihad.

Then, I get to be lectured to about how we live in a meritocracy. How we should all be equal. That we should live in a color blind society, and blah, blah, blah.  I keep saying this is absolutely not about fairness or equality. It's about retaining status.

by bruh3 2009-07-12 04:56PM | 0 recs
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Re: Poster child

But Mr. Ricci--and his white/Hispanic colleagues-- scored higher on the test, for which he strenuously prepared.

Are you suggesting that the exam which was administered by the city was somehow unfair? Federal Law requires that such tests by verified by an independent agency, which was done thoroughly and on time. If you have some evidence that there was some kind of bias with the test, I'd be curious as to the details you've uncovered.

by BJJ Fighter 2009-07-12 05:56PM | 0 recs
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Re: Poster child

Let me make this as simple as possible: we do not live in a meritocracy. If you want to live delusion that you do, I am not the person for that conversation.

by bruh3 2009-07-12 06:08PM | 0 recs
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a bit more complicated

What about the people who scored higher on the test Ricci took in the mid-1990s? I agree with Beutler, who wrote

If you were Frank Ricci, you might say something like, "Frank Ricci got a job and somebody who wasn't dyslexic didn't."

by desmoinesdem 2009-07-12 06:56PM | 0 recs
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You don't understand the issue

The issue in Ricci was whether fear of litigation on a disparate impact claim is sufficient reason to disregard a test, when that disregard will result in disparate treatment.  The SC's decision means that employers who want to administer these tests are between the Scylla of a DI suit and the Charybdis of a DT suit.

Federal Law requires that such tests by verified by an independent agency,

This is not true.

by JJE 2009-07-12 07:01PM | 0 recs
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Ricci won because his case was just.

Well, the fact is the city if New Haven was wrong. Ricci won the case, becuase the city was wrong plain and simple.

by BuckeyeBlogger 2009-07-12 05:56PM | 0 recs
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Not really

5-4 decisions aren't "plain and simple."  

by JJE 2009-07-12 06:49PM | 0 recs
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if O'Connor were still on the court

instead of Roberts or Alito, this could well have been a 5-4 decision the other way.

by desmoinesdem 2009-07-12 06:53PM | 0 recs
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Yup

Ricci did not win because "the city was wrong plain and simple", Ricci won because the suit was brought to appeal in 2009 and not 2004.

Which really is the only problem with attacking Ricci-- pointing out the blatant ugliness of his cause distracts from the blatant irrelevance of his case to the nomination of Sotomayor.

by mcc 2009-07-12 10:28PM | 0 recs
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Re: Yup

which is the same reason that I have a problem with the Olson gay rights case right now. It is coming up at a time when the court is packed with conservatives intent on rolling back constitutional gains of the last few decades. But, people seem intent on pretending the court is "objective" rather than pushing an agenda. Big Tent democrat over at talk left has had some excellent posts on how the court in Ricci was actually legislating from the bench. Something conservatives say they are against, but here they applaud because they like the results. Again reinforcing my believf that merit is a joke.

by bruh3 2009-07-12 11:01PM | 0 recs
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Re: Yup

Sorry but throwing out the test results becuase not enough minority candidates scored high enough is unacceptable to me. If they didnt score high enough it means they werent capable of scoring high enough. You dont punish the success of candidates who did well because less qualified or educated applicants could pass muster.

by BuckeyeBlogger 2009-07-13 06:45AM | 0 recs
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Re: Yup

Well fear not then, for there is an entire political party of old white men working day and night to ensure that your concerns (and no one else's) are heard.

by mcc 2009-07-13 10:35AM | 0 recs
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Re: Yup

Give me a break. Fact is they shouldnt have thrown out the results. And dont give me this "old white men "crap". There is way to much nonsense going on where qualified candidates including hispanics are being denied jobs because they need to go to an African American. Thats just plain wrong. You hire the best and most qualified applicant, race is irrelevant. Even my far left liberal cousin made that statement last weekend. If we live in such a racist country how on earth did we elect Barack Obama?

by BuckeyeBlogger 2009-07-13 03:27PM | 0 recs
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Re: Shouldn't have

And her ruling was overturned by the US Supreme Court. Story over....the highest court in the land ruled on it. And in doing so, determined she was wrong.

by BuckeyeBlogger 2009-07-13 06:10PM | 0 recs
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Yeah

Ricci appears to be a lawsuit-happy white-grievance type.  Nonetheless, I don't think it's really in the broader progressive interest paint people who bring civil rights claims as litigious troublemakers.

by JJE 2009-07-12 06:37PM | 0 recs
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point taken

I don't have a problem with people defending their rights in court. I do have a problem with the conservative myth that's developing around Ricci, which Lithwick nails: "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 [...]."

by desmoinesdem 2009-07-12 06:52PM | 0 recs
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Re: point taken

Yeap, this is all about mythologizing  "merit" in a society not based on merit in most other ways. It is like the mythologizing of "objectivity" as if background does not impact everyone on the court. I am fond of remembering Scalia being asked whether he would go home to perform sodomy on his wife after a gay man at Columbia Law, I believe, wanted to illustrate that the Supremes are far from objective. That Scalia and others could find such comments offensive, but then dig into the sex lives of gays demonstrates how they do not understand how they are not at all objective. The same here with regard to merit. That he can do whatever he wants, and indeed, most of the people who will be discussing this case- can personally do what they want with regard to merit, but then speak as if it is important, illustrates just how bogus the debate is.

by bruh3 2009-07-12 07:23PM | 0 recs
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Re: point taken

What would you recommend as a corrective measure?

by orestes 2009-07-13 02:23PM | 0 recs
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Re: point taken

Did you miss Hilzoy pleading against this?

Stop it. Really. Just stop.

by MNPundit 2009-07-12 08:25PM | 0 recs
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Re: point taken

This argument that you are linking to is the same approach that liberals took a few years back when the Republicans or conservatives would just out and out lie and we were not supposed to call them on it. Remember Kerry being afraid to say that Bush was lying so he said, instead, everything but that word? Why exactly is it okay to allow the right to mythologize this guy? I am at a lost to understand why his background in terms of whether this myth is tru eor not is not relevant? The future Justice is not creating a myth out of her background. but the conservatives certainly are trying to turn this into a joe the plumber. So, would you also say not to bring up joe the plumbers background too?

by bruh3 2009-07-12 08:42PM | 0 recs
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Re: point taken

I don't think your example is apposite.  If Ricci lies in the hearing, then he is opening himself to fair criticism.  The Republicans who mythologize him are open to criticism, too, if this is what they do.  This guy is not the same as Joe the Plumber who threw himself into the public arena as a supposed example of the average American guy.  Ricci has been called to testify to Congress, which he cannot under normal circumstances refuse.  We do not know what he will say, so I think it is both unfair and politically unwise to attack him without basis.  I do not think a litigant should be criticized because s/he has filed previous claims.  Some people are more litigious than others.  Granted some are crackpots, but these people often help make it easier for others to obtain redress.  I think that's a good thing, particularly as the courts are often the only redress available to average citizens (and even that is limited because of the great expense of time and money needed to see it through).

by orestes 2009-07-13 08:42AM | 0 recs
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Re: point taken

I think it is a bit much to assume that Ricci will be testifying involuntarily.

by Steve M 2009-07-13 10:43AM | 0 recs
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Re: point taken

I'm not saying he will appear involuntarily.  I am saying that we do not know if he intends to try to play a political game with this case.  We don't know what he will testify to, whether he has a personal motive, etc.  He is being imputed with the same motive as the republicans.  Why else try to demonize him?  I think he is irrelevant to the case and the confirmation hearings.  I think he should be treated in that manner.

by orestes 2009-07-13 11:41AM | 0 recs
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Re: point taken

I don't see anything close to an effort to demonize Ricci.  I do see an effort to un-angelize him, which is probably fair.

People can make whatever they will of the facts.  I personally don't think negatively of people who file lawsuits, but I'm not a fan of the sort of person who loves the anti-discrimination laws when they work in his favor but not when they work against him.

by Steve M 2009-07-13 01:14PM | 0 recs
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Re: point taken

Your choice of words is better than mine in that you accurately reflect the nature of how the myth works. I have no problem with someone using the legal system. I do not even have a problem with people using their relationships in business to get ahead. Where I have a problem is how the myth distorts the conversation about how they got ahead. Rather than his gaming the system in his favor, we are to believe from the conservative narrative that he's just a "hard working Joe" done wrong by the system.  As for the people I know, it is not that they worked hard but also gamed the system in their favor, they "pulled themselves up by their own boot strap" If you were to hear them tell the story. It is the fantasy that is dangerous to real debate. No one does it alone,a nd merit it relevative.

by bruh3 2009-07-13 02:27PM | 0 recs
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Re: point taken

The clear implication of Lithwick's article (which is linked above) and the rally against Ricci is that he somehow has unclean hands; that he is to be viewed with suspicion because he has filed other litigations.  You admit that the purpose is to de-angelize him.  Well, that involves raising questions about his motive and character.  To me that is akin to demonizing someone (I would not argue against application of a less charged term, but that is the one that came to my mind.)  

People, of course, will make what they will of the facts.  I don't think it's a smart move politically to go after this man.  Many of the positive changes in the law have come about by serial litigants.  Some people like the fight, which inures to the benefit of all of us.    

I don't think it's fair to characterize his position as calling upon or challenging the antidiscrimination laws only when it suits him.  His actions are not in contradiction.  The purpose of the antidiscrimination statutes is evident.  If one suffers discrimination, one should avail onself of the laws.  That is what he did- he felt was discriminated against because of a disability so he challenged the hiring decision.  Later, he felt the law was being applied in a discriminatory manner and challenged it.  Do you really expect that if someone uses the antidiscrimination law to confront an unlawful act that s/he should be barred from challenging the application of antidiscrimination laws in the future?  That makes no sense to me.

by orestes 2009-07-13 02:48PM | 0 recs
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Re: point taken

I want to be clear that I am not commenting on the validity of either of his earlier law suits because I do not know enough about either.  I don't think the limited facts cited in the Slate article are enough on which to draw a conclusion.

by orestes 2009-07-13 02:50PM | 0 recs
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Re: point taken

I really do not undrestand your point. Taking away the myth is not demonizing. it is placing his behavior on context to allow people to make a proper assessment of who the person is. It does not make him evil to point out that he's not the myth that the right would like to pretend. There is a difference between giving people the full truth to break any illusion of who a person is versus what you describe as demonizing. The later is trying to make him seem evil. the two choices given , neitehr of them, make him seem evil- just looking out for his own interest by trying to game the system in his favor. The point of stating this is to get rid of the right wing myth of the "white man's burden" when in fact, even with this person, regardless ow hat you think of the litigation it is far more complicated than they describe. People need to know this complexity.

by bruh3 2009-07-13 05:32PM | 0 recs
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Re: point taken

My point is that I don't think it's relevant who "the person is."  He was a litigant in a SC case.  If he had lost and the republicans could hold him up as a poster boy for the ills of affirmative action, I would understand your point.  What could he possibly complain about?  He won in the end.  

Also, putting forth evidence that he filed a suit before does not directly undermine the "myth" of his being a hard-working person who pulled himself up by the bootstraps.  The two are not mutually exclusive.  That's why I think bringing up his past will only make the purveyor look petty.

The supposed myth about him would have to go along the lines of:  here's this guy who worked hard as a firefighter and studied very hard for the exam so that he could advance in his career and provide a better life for his family (if he has one).  He did everything he was supposed to do to earn this promotion.  Then the city pulled the rug out from under him (and the other plaintiffs).  Do you really think bringing up his past litigations would somehow vitiate this myth?  Perhaps you can think of a retort that will do this, which I would like to hear.  I just can't formulate it.

by orestes 2009-07-13 06:39PM | 0 recs
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Re: point taken

Meant to read:  do you think this would vitiate this story?

by orestes 2009-07-13 06:41PM | 0 recs
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Re: point taken

by the way, regardless o this guy or how much i support affirmative action , i think liberals need to fight right wing myth making every chance we get. When someone is being presented as the hard working, pull himself up by his own bootstrap type, people need to know the full picture. Simplistic models favor conservatives. The truth favors liberals. As a general principle, I always believe in fully disclosing.

by bruh3 2009-07-13 05:35PM | 0 recs
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this is one of those rare times

when I disagree with Hilzoy.

by desmoinesdem 2009-07-13 05:07AM | 0 recs
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What does Ricci's past

litigous behavior have to do with this decision?  I personally am troubled by a tendency to demonize anyone because they filed claims in the past.  If he has demonstrated a tendency to lie or obfuscate to get his way, that is a legitimate issue to raise.  Some people are litigious, but that has no bearing on the merits of their claims.  We should not delegitimize someone's demand for redress because we find them a nuisance.  If Ricci were black and had filed earlier claims, do you think it would be acceptable to disreagrd their claim because of past behavior?  I would say no.  And I think there is some racism going on here, which was an old problem with the left- the tendency of the white privileged classes to demonize the white working class as racist while they clutched their pearls in horror in their all white communities and nearly all white private schools.  We need to get past this attitude.

by orestes 2009-07-13 08:19AM | 0 recs
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Re: What does Ricci's past

I think you are trying to reduce this to a situation in which he is not a part of a larger discussion. for example, you say above you accept that conservatives are trying to create a narrative about him. Well, that's the point- how exactly would you suggest one address this myth without actually talking about the fact of who Ricci is in terms of how he pushes the system to favor him whenever he can? That's not demonizing by the way. that's real life. Everyo ne does the gaming of the system to favor their own interests. SO long as it is legal and above board- we should not be surprised by it. Yet, the fantasy that we are suppose to buy is that he is a hard working joe above these sorts of things. Yet, that's not the full picture. If people want to think of him that way with his entire history on the table- that's fan. It's the conservative fantasy we are combating. that can not be done by tying our hands with "well but what about the ability to litigate."

by bruh3 2009-07-13 02:33PM | 0 recs
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Re: What does Ricci's past

I think the republicans intend to use him to highlight anxiety, particularly among white Americans, about affirmative action.  In that context, the facts about Ricci's past litigations are not really responsive or helpful.  That is, they are not likely to change anyone's mind and no points will be gained by picking at his past. Would you advocate that he be questioned about these litigations?  I clearly do not.  Furthermore, he is not the only plaintiff in the matter.  

If the purpose is to undo the republican narrative about this guy being a regular hard-working guy (has this put out there in the press?  I haven't seen anything, but I have not been following the news beyond my local papers), I don't think trying to make him look bad is going to be effective on this front either.  It comes off as petty.  The man was one of several applicants who challenged the city's action.  And whether they like Ricci or not, I believe most Americans would stand with the appelants on basic fairness grounds.

Let's assume he is an opportunist, another Joe the Plumber.  In the context of a SC decision, that isn't relevant.  Indeed, I am curious to hear what he will testify to.  I epxetc he will give a "noble" speech about fighting an injustice.  Big deal.  What is there going to be to rebut?      

The Ricci case will disappear from public consideration as soon as these hearings are over.  Clearly, she is going to be appointed, so there's no defensive reason to delve into his past.    

I just don't see the battle here.

by orestes 2009-07-13 04:50PM | 0 recs
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Re: What does Ricci's past

I can not imagine anyone knowing the full facts not seeing the situation in a different light than you describe.

by bruh3 2009-07-13 05:29PM | 0 recs

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