Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.
After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day, and, because of his dyslexia, hired someone to read him the material.
He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.
A compelling story, no doubt. But nowhere in the column does Krauthammer delve into the legal details, instead leaving the audience with the impression that because Ricci was unfairly treated, he should win. Hmm, curious. He does say this, though:
Sotomayor shares President Obama's vision of empathy as lying at the heart of judicial decision-making -- sympathetic concern for litigants' background and current circumstances, and for how any judicial decision would affect their lives.
Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy -- and unequivocally for the principle of blind justice.
Empathy is a vital virtue to be exercised in private life -- through charity, respect and lovingkindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.
But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.
What's left unsaid, of course, is that the law in this case is at best unclear. In fact, there's a very strong case to be made that the city of New Haven acted strictly in accordance with Title VII. That doesn't change the fact that Ricci was treated unfairly, but at least according to one reasonable interpretation, the law's the law.
I was going to launch into some long speech about how it's never so easy as Krauthammer portrays it, but I found that Jack Balkin already did it (here's just a sample, the whole thing is good):
... Krauthammer can use Ricci's case to argue for impartiality in judging because they assume that the law clearly favors Frank Ricci. But it does not. An impartial judge reading the law impartially might find against him. But if that is so, what work is the distinction between empathy and impartiality doing in their argument? Impartiality may not be on Ricci's side; empathy may be. Or perhaps-- and this is the most likely scenario-- the law that applies to the case is not entirely clear.
The most controversial cases that come before the federal courts are usually not clear, even though the lawyers on both sides often persuade themselves that the law is clear and believe that an impartial judge will have no problem finding for their side. That is not surprising. What makes a case controversial is precisely the fact that people disagree strongly about what the law is and how it should apply. The problem is what to do with these cases, where both sides fervently claim that impartiality and objectivity are on their side and claim that the other side is mistaken and wants to twist or deform the law. Arguing for impartiality is simply not going to solve the problem....
Which brings us back to the central problem: If you are impartial in the sense that we normally expect of judges, applying the law fairly as it is written without respect to persons, you might well find against Frank Ricci. Of course, as I noted before, it is far more likely that the law is actually unclear, which is why the Supreme Court is taking the case in the first place.
Faced with this possibility, one assumes Gerson and Krauthammer would say that the law is an ass if it finds against Frank Ricci. Where the laws are unclear, or there are plausible arguments on both sides, we should interpret laws to promote what is just, and not what is unjust. I have no doubt that Sonia Sotomayor would agree with these sentiments completely. But if so, this pretty significantly alters the nature of the debate. What separates her from her critics, then, is not that one side believes in impartiality and the other believes in empathy. What separates them is that they disagree about what is just and unjust.
Now there -- just vs. unjust -- is a debate worth having.
