attended the oral arguments at the U.S. Supreme Court this week in
, and he has written this report about it for VFR.
Ricci vs. DeStefano, a case that transcends the interests of firemen, and may determine if ability is a criterion for selection in employment, was argued before the U.S. Supreme Court on April 22. The Court was packed, as it normally is when such a high profile case is argued.
The facts are these:
In 2003, Frank Ricci, a dyslexic, after years of preparation to overcome that obstacle, took the test for lieutenant in the New Haven Fire Department, and came out 6th of the 72 applicants who were deemed “qualified.” No black and one Hispanic appeared on that same list. Quoting the “disparate impact” standard, the solons of New Haven discarded the results of the test. Ricci sued in state court, where his petition was denied. The results were the same in the federal district court, and in the Second Circuit Court of Appeals. The Second Circuit did not hear the case, but, in a summary judgment signed by three judges, agreed with the district court’s decision. Interestingly, one of the three judges who ruled in the case against Ricci was Sonia Sotomayor, who has been talked about as a candidate high up on BHO’s list for the Supreme Court when the next vacancy arises.
The oral arguments lasted nearly 90 minutes (instead of 60). I can with some degree of confidence say that one vote will determine if Ricci and other white candidates for any job in government or private enterprise will receive the equal protection of the laws. That vote belongs to Justice Kennedy. Based on Kennedy’s votes in previous case, Ricci would lose. However, my sense is that Kennedy will not vote with the liberals on this one. For it was clear from the get-go—particularly from the bloviations of Souter and Ginsburg—that the defendant and the left side of the court were judging Ricci solely on the fact that he is a Caucasian.
During the oral arguments, I was close enough to observe Justice Ginsburg, whose gaunt, skeletal face and mid-distance stare, coupled with her difficulty in speaking at any length, convinced me that she is here for the long run, no matter how short that may be. She was relentless in summoning the principles of “disparate impact” as a rationale for the New Haven decision. Ricci’s rights were of secondary importance.
Perhaps I show my own prejudice, but I thought that Ricci’s attorney, Gregory Coleman of Austin, did a fine job, the best of any advocate I’ve seen in all my visits to hear oral arguments. He openly told Ginsburg, Souter, and Breyer: “I disagree with your finding.”
It should come as no surprise that Deputy Solicitor General Edwin Kneedler was on New Haven’s side. But he talked out of both sides of his mouth, especially when asked—repeatedly—by Chief Justice Roberts: if the test results were reversed, would the Department of Justice intervene to protect whites because of “disparate impact?” Kneedler’s (unbelievable) positive response made me laugh and Roberts and Scalia smile.
Let it also be said that Chief Justice Roberts was a paladin of constitutional liberty on this day: he was incisive, patient, and always a gentleman. Roberts was particularly effective in questioning the legitimacy of New Haven’s claim that its position was based on anything other than race. He asked—repeatedly—what the legal difference was between “race consciousness” and racial quotas. The answer from a non-lawyer—me—is that the former term was created by liberals to obfuscate the latter policy. Justice Alito, who spoke rarely, said that New Haven’s performance made it clear that no matter how many color blind tests were devised, the city would reject the evidence of a test’s fairness if no black or Latino was deemed as qualified. New Haven’s explanation of its decision to void the results was, in short, pure sophistry.
If my observations are correct, the Court’s liberal and conservative wings will hold on this issue, and it will come down to Kennedy. If Kennedy sides with Roberts, Scalia, Thomas and Alito, which I believe he will do, Ricci will prevail. But the real question will be the scope of the decision. If it is narrow, then, even though conservatives will have won this battle, the war by liberals against the Constitution and the rights of Caucasians in employment will continue.