Sotomayor Under Fire for Discrimination Case

New Haven firefighter Ben Vargas says legal system "didn't care" about his case.

July 15, 2009, 6:09 PM

July 16, 2009— -- Supreme Court nominee Sonia Sotomayor might be off the hot seat as her confirmation hearings wind to a close, but one firefighter today offered a parting shot when he alleged the government and legal system -- namely an appeals panel that included Sotomayor -- "didn't care" about his discrimination case.

Ben Vargas, a Hispanic New Haven, Conn., firefighter joined a group of white firefighters in a lawsuit against the city, Ricci v. DeStefano, claiming the city had discriminated against them by not granting them promotions when it threw out promotion tests because black firefighters didn't perform well on them.

Sotomayor and a lower court panel ruled that the firefighters were not unfairly denied promotions, but the Supreme Court last month reversed that decision.

"The focus should not have been on me being Hispanic," said Vargas. "The focus should have been on what I did to earn a promotion to captain, and how my own government and some courts responded to that. In short they didn't care."

"I think it important for you to know what I did, that I played by the rules and then endured a long process of asking the courts to endorse those rules," he told the Senate Judiciary Committee.

In questioning earlier in the day, Republican senators including John Kyl of Arizona and Lindsey Graham of South Carolina both pressed Sotomayor on the Ricci v. Stefano decision.

Sotomayor today told the lawmakers that the panel's decision needs to be placed "back in context," saying that the issue at hand in the case was whether "a member of a disparately impacted group had a right under existing precedent to bring a lawsuit."

She explained during earlier exchanges this week that it was not an affirmative action case, and that the issue at hand was very narrow.

But Graham said that in the Ricci case, "you missed one of the biggest issues in the country, or you took a pass."

Sotomayor Challenged on Courage

As senators moved into a third round of questions, the top Republican on the committee again asked about the case, prompting a rare moment of apparent frustration from Sotomayor, who has thus far responded to senators' queries in measured tones.

Sen. Jeff Sessions, R-Ala., asked Sotomayor if she failed to show "courage" in her initial decision, which was only one paragraph long, and to "discuss the issue openly" with "depth" in her opinion.

"And wouldn't we have been better off if the case had been handled in that fashion?" he continued.

"Sir, no. I didn't show a lack of courage," Sotomayor shot back. "The court's decision was clear in both instances on the basis for the decision it was a thorough, complete discussion of the issues as presented to the district court. The circuit court's ruling was clear in both instances. No, I did not lack courage."

In his testimony, Vargas said he's proud of the Puerto Rican heritage he shares with Sotomayor and congratulated her on her nomination, but expressed his strong disagreement with her decision in the case.

Noting that he prepared extensively for the promotion exam for months, he said, "I was shocked when I was not rewarded for this hard work and sacrifice. But I actually was penalized for it."

"I became not Ben Vargas, the fire lieutenant who proved himself qualified to be captain, but a racial statistic."

Saying that Justice Samuel Alito, who voted to overturn Sotomayor's decision, "best captured our own feelings" in the case, Vargas said, "We did not ask for sympathy or empathy. We asked only for even-handed enforcement of the law and prior to the majority Justice opinion in our case, we were denied just that."

The case bears the name of Frank Ricci, another New Haven firefighter who testified alongside Vargas today. Ricci said he appreciated the invitation by Republican Senators to tell their story.

"The price of democracy is vigilance and to be willing to participate," Ricci said.

"This is America. If we keep going forward, the process will work," he added, recalling discussions with the others who joined the lawsuit and their lawyers during the arduous legal battle. But Ricci said the process was worthwhile, calling it "an unbelievable civics lesson, that if you participate in democracy, that's how it all works."

Question of Temperament

Senators finished questioning for Sotomayor before the witnesses -- including the firefighters, New York City mayor Michael Bloomberg and legendary district attorney Robert Morgenthau -- began their statements.

Graham has taken several swipes at Sotomayor, asking earlier in the week if she thinks she has a "temperament problem" and decrying remark a remark she made that a "wise Latina" judge might arrive at a better conclusion than a white man in some cases.

Sotomayor has repeatedly tried to explain the statement, which she made in several speeches earlier this decade, saying she doesn't believe any one group has a monopoly on wisdom.

Graham acknowledged today that she has worked very hard and earned the respect of many, but added that she has also "said some things that just bugged the hell out of me."

Asked once again what she would say to people offended by the "wise Latina" comment, she told Graham, "I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words."

"You know what, Judge? I agree with you. Good luck," Graham said, sounding more conciliatory than he had in past exchanges.

Witnesses Testify For and Against Sotomayor

After senators exhausted their questions, the panels of witnesses began testifying for and against the nominee.

Democrats have asked for the testimony of her former employers and mentors, including legendary New York District Attorney Robert M. Morgenthau and former FBI Director Louis Freeh.

In an article for the New York Daily News, Morgenthau wrote glowingly about his former employee: "Assistant District Attorney Sotomayor was no 'liberal.' Rather, she was a tough and effective prosecutor. Young prosecutors are sometimes picked on by judges and defense attorneys, but no one successfully pushed this ADA around."To the general public, Sotomayor is perhaps best known for her ruling as a lower court judge in 1995 that ended a baseball strike. Upon her nomination President Obama said:

"In a decision that reportedly took her just 15 minutes to announce -- a swiftness much appreciated by baseball fans everywhere… she issued an injunction that helped end the strike. Some say that Judge Sotomayor saved baseball."

David Cone, a former major league player, will testify on her behalf.

Kim J. Askew, of The American Bar Association, will testify about the group's recent rating of "well qualified" -- its highest rating -- that it recently bestowed on Sotomayor.

The minority will also call witnesses who will testify against Sotomayor.

In addition to two of the New Haven firefighters who sued the city, Sandy Froman, the former President of the National Rifle Association, is set to talk about her fears that Sotomayor is hostile to gun's rights advocates. In her testimony Sotomayor has said she recognizes that the 2nd Amendment guarantees an individual's right to have a gun and she mentioned that one of her godchildren is a member of the NRA, but gun rights advocates believe she would vote for an expansion of gun restrictions.

The hearings are expected to continue into Friday. Senator Leahy has said he hopes to have a Senate vote by the August recess.

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