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July 12, 2009

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Civility has no place in American politics!

Questions to ask Frank Ricci:

1) What is your background in the legal profession?

2) Given that background, what light can you shed on Judge Sotomayor's application of precedent in your case?

3) What legal theories are you relying upon in that judgment? Please offer citations.

4) Next witness!

A question for the lawyers, was Ricci's earlier suit concerning the discrimination against him overlooked in the later suit, or would it not have had any impact on the later decision?

Does it make a difference, holzoy, that the Republicans in the committee are planing tomake a star witsness out of him? Maybe he should agree to grab his fifteen minutes of fame first, before the attacks on his credibility begin.

I think that you are probably right that stories about him shouldn't be in the media now. However, if he decides to make a big deal of himself and trot down to Washington to testify, I think it is in order for someone as the hearings to question him about his serial litigation and his qualifications as a lawyer. It's as relevent as anything else he might have to say.

I've been thinking about this some more.What is the purpose of having this guy as a witness? I think he is beng brought forth sort of as a Joe the Plumber, Republican committee members' idea of the White Everyman who embodies resentment, in this case resentment that a Latina might get into a powerful positionn and use that position against white men.

The whole issue of affrimative action is one tht I think does need to be discussed and re=evaluated seriously. I doubt if the hearings for Sotomayer will function that way: grandstanding will be more the order of the day. I think the purpose of trotting Ricci down there is to grandstand; no one will state it this baldly, but the basic message will be that white men need to band together to protect themsleves from all those not whites who are trying to get power away from them.

It would be better to respond to this nonsense with a serious, open minded discussion of affrimative action, economic stagnation, white entitlement, and the effects of economic competition on racial tensions, rather than simply exposing Ricci's history as a serial litigant.

But, as I said, grandstanding will likely be the order of the day so the push back against Ricci might be just as dishonorable as his promotion as a witness.

Ricci doesn't belong as a witness. But hilzoy is probably right: his presence should be discredited without discrediting him personally.

But it is two in the morning and I should be asleep.

TPM had a piece on Ricci too.

http://tpmdc.talkingpointsmemo.com/2009/07/new-haven-firefighter-originally-hired-by-claiming-discrimination.php?ref=fpb

In any other context conservatives would be denouncing Ricci as a litigation whore, but that's really neither here nor there in this instance, and no reason for liberals to turn the tables. Presumably the ADA and whistle-blower protections are there for a reason, and are accessible to all, regardless of race or gender.

Republicans want to use cases like this to reassemble the Reagan coalition by bringing back a majority of white ethnics ("Democrats don't care about hard-working working class people like us" - the ads write themselves). There's no reason for Democrats to play along with this game.

One discussion that might be worth having is why firefighting seems to be such a segregated profession. I have never seen a firefighter of color.

Dahlia Lithwick has a current piece on Ricci. Wonder if it triggered this.

I don't know why bob h has not seen a fireperson of color. In my commuity the fire department folks come in the same sort of variety as the comunity itself and I am not aware of much controversy about it. The Longshoremen and Teamsters, on the other hand!

The Longshoremen have a tradition of keeping jbs within families so affrimative action not only challenged white male hegmony, but also meant that so annd so's nephew couldn't drop out of highschool and walk into a very good paying job. There is still alot of tension around this combined with a culture of drug use and drug dealing. No this is not a reasonn to attack unions. The firefighters are in a union too and have none of this sort of dacadence.

Obama should take some of the billions that we're spending and fund an NIH program to find a cure for stupid.

It'd be the best investment this nation has ever made.

That article is a bit overblown. The comparison to Anita Hill is a tad much.

"Targeting" the guy is playing the opposition's game. But, Ricci is being used as a major cudgel against Sotomayor. His personal account also reflects how civil rights law is used.

Maybe, Specter -- for which it is a major concern -- can note how the SC's federalism jurisprudence was used against disability claims in various cases.

This is fair. Personal accounts and litigation are used by both sides to clarify the different sides. Anyway, Dahlia Lithwick and others reported on the subject. If making sure reporters tell this side of the story too is "targeting," I'm not sure how horrible it is.

This whole line of inquiry is stupid. The firefighters case obviously divided the courts, including the Supreme Court. There's simply nothing here that disqualifies Sotomayor. At some level, even her opponents understand that they've failed to find a smoking gun.

I think the larger problem here is that, even with the Democrats in control of both the White House and the Senate, the right continues to dominate discussions of the federal judiciary.

Why are we not hearing more on the left pointing out that, once again, a Democratic President has nominated a centrist, not a progressive, to the Supreme Court? Sotomayor deserves confirmation; she's clearly extremely well qualified. But I wish we were having a more politically balanced discussion of her record, rather than one dictated entirely by right-wing framings.

First, it's wrong.


Of course it's wrong and stupid - this is a SCOTUS hearing, and one in which the GOP is in the opposition! If Ricci were not being called as a witness by the GOP, if he were deemed by *them* to be irrelevant to Sotomayor's confirmation, as he should be, then Ricci (the person) should be ignored by everyone in this context.

But, if not, not.

Hilzoy's 100% right. And more than just pointless ugliness, it's fighting on their turf. I don't mean it's stooping to their level. I mean it's letting them frame the issue -- that's what they want. Don't be stupid.

Hilzoy's right, and not just on moral grounds; a reputed shark like Rahm Emanuel would be just as likely to agree that nothing is served by aggressive questioning of Ricci, except possibly turning him into the next Joe the Plumber.

One suggestion, though: as the committee Democrats, one and all, blandly thank Ricci for risking his life to serve his town as a firefighter, they ought to try to work in the use of the word "empathy" as much as possible. Really, like they should pool wagers, and give the prize to the committee member or counsel who says "empathy" the most times.

So, margarita, when Ricci is testifying, and it's a dem's turn to question him, after there having been racial resentment dredged up by the repub, should the dem Senator(s) just sit there? Should they just pass? I'm really asking. Seems to me that a GOP Senator on this committee has the ability to frame an issue any way he/she wants, and the frame is there.

I'd love to be wrong about this.

I wonder if he has granite counter tops?

You are of course right Hilzoy. And you willingness to condemn this highlights the difference between the two sides.

I'm sure Erik the Red is outraged as well.

I think that WRT Ricci 's ADA lawsuit due to his dyslexia, that it would be interesting to see when he feels a disadvantaged group deserves different or special treatment or when criteria should be changed to accommodate them.

If Ricci is going to be testifying in opposition to affirmative action, I don't see why it should be off limits to ask him about his apparent support of affirmative action for dyslexics. Certainly there's no need to get into examining his countertops, though.

I should have said that I would like to agree with Hilzoy on this, but that the question is debatable, tactically. I don't see what's wrong with possibly forestalling Ricci's (irrelevant) testimony altogether. He chose this fight in the first place.

There may have been some borderline rhetorical tactics used to defeat Bork, for example, but if I have to choose between having him on the court all these years and someone having used some mildly unfair/irrelevant rhetoric against him, I chose the latter.

Don't you think being dyslexic is different than being black or hispanic? Don't you think implying that they are the same or very similar is extremely insulting? Dyslexia, especially in the context of a WRITTEN exam, makes a much easier case for some type of "affirmative action."

His testimony is not irrelevant. He was, after all, a litigant in a case before her. It is just entitled to very little weight and it is probably also duplicative.

Don't you think being dyslexic is different than being black or hispanic? Don't you think implying that they are the same or very similar is extremely insulting? Dyslexia, especially in the context of a WRITTEN exam, makes a much easier case for some type of "affirmative action."

I wasn't implying that they are the same, or as easily dealt with, however if it is possible to address them even if one is harder than the other, then shouldn't it be done? FWIW, I am dyslexic and it has affected my life, and I would rather see racial discrimination dealt with first. The comparison doesn't offend me. At any rate I would think that Ricci's take on this would be relevant.

should the dem Senator(s) just sit there? Should they just pass?

Yes. Absolutely. That would be the pitch-perfect response: "Thank you for sharing your testimony today, Mr. Ricci. I have no questions, Mr. Chairman."

Don't you think being dyslexic is different than being black or hispanic?

Neil is right, but beside the point. And yes, Ricci's testimony is relevant, technically speaking. Also beside the point. Neil (and Hilzoy, I fear) want to treat a confirmation hearing as if it were a court of law, or something similarly sober and rational. Would that it were anything remotely like that.

You are of course right Hilzoy. And you willingness to condemn this highlights the difference between the two sides.

And what are the differences? One is that the loyal (?) opposition insists that the other side adhere to a very fastidious ethical standard but recognizes no such standard for itself. It in fact evidently imposes little or no ethico/rhetorical standards at *all* onto itself. Another difference is that liberals focus on winning battles, and the loyal opposition focuses on winning the war. Guess which strategy is more effective?

How to you beat an amoral insurgency? It's an old question, because it's very very hard to answer. I may be wrong, but I don't think it's so obvious.

I think that WRT Ricci's ADA lawsuit due to his dyslexia, that it would be interesting to see when he feels a disadvantaged group deserves different or special treatment or when criteria should be changed to accommodate them.

Actually the interesting question would be, assuming (perhaps incorrectly, too lazy to look it up) that the fire department in question didn't have an express policy of not hiring or promoting people with reading disorders, how did he know he had been discriminated against? Was a finding of disparate impact involved?

That's an academic question, though, and Dems would be fools actually to ask it of Ricci. The object of this game is not to have a symposium on civil rights and affirmative action, but to make it as difficult as possible to vote against Sotomayor and future nominees of Obama.

What's the over-under on the number of talking-head shows Mr. Ricci appears on in the week following his testimony?

I don't think Charlie Rose will give him a half-hour, but I think you could see him anywhere else.

You need a protagonist and an antagonist. Opposition to Sotomayor needs to have a human face, a spokesperson. You don't see the CEO of Subway. You see Jared.

They're looking for this cause's Jared. Ricci'll do.

I liked this comment from the corresponding post over at Digby's:


That also leads to this question--How is it that someone who sued that he was discriminated against because he was dyslexic, was able to “ace” a promotion exam nine years later?

There are three possible answers. He was either cured of his dyslexia, lying about ever having dyslexia, or provided with some special benefit (most likely extra time to take the written portion of the exam) by the city to make up for his dyslexia.

I think he most likely either got extra time, or he is a liar. If he got extra time, how ironic is it that the disabled guy who was given extra time so the exam would be fair to him sued the city when the city said the test was unfair to African Americans?

The object of this game is not to have a symposium on civil rights and affirmative action,

Exactly.

Why is is, I wonder, that the out of power and deeply discredited Republican party virtually still frames virtually every political 'debate' in this country? Hmmmm...

Don't you think being dyslexic is different than being black or hispanic? Don't you think implying that they are the same or very similar is extremely insulting? Dyslexia, especially in the context of a WRITTEN exam, makes a much easier case for some type of "affirmative action.
According to what has been reported about the earlier lawsuit, he did not ask for "affirmative action." He had passed the test notwithstanding his dyslexia, but alleged that he was turned down because he mentioned at his interview that he had dyslexia.

The distinction is important, because the vast majority of Americans -- pretty much everyone except libertarians -- supports laws against discrimination. But they don't support preferences.

Ricci's testimony is completely irrelevant to the confirmation. But given that Republicans called him and he was willing to testify, presumably about the legal case he had before Sotomayor, it is entirely appropriate to question his legal history, which is a matter of public record.

It's not "pointless ugliness" or "wrong." His ADA case is part of the public record just as much as his Title VII case is. In fact, one of the reasons lawsuits are part of the public record is to dissuade cost-free litigation. Republicans are labeling proponents of affirmative action as extremists. Should their hypocrisy not be aired in order to take some mythical high road? Ricci's litigious history is absolutely relevant to his testimony, even if his testimony itself is absolutely useless in evaluating Sotomayor.

Democrats shouldn't question Ricci at all. They should ask Sotomayor just one question about the case, which is, "Why did you rule the way you did?," to which her answer should be, "because that is what I believed the law required me to rule, and four Supreme Court justices agreed with the way I ruled. In making my ruling, I could not take into account the fairness of the result to Mr. Ricci."

Henry, I would continue with your hypothetical quote with: In making my ruling, I could not take into account the fairness of the result to Mr. Ricci; to do so would have been judicial activism."

If Mr. Ricci is by some chance questioned by the Democrats as some sort of expert witness, I would ask him why this ruling is not a case of legislating from the bench, i.e., judicial activism. Given the amount of coverage by the Usual Suspects this particular bit of confirmation testimony is sure to garner, I would - speaking as a strategist - pound this point home again and again and again.

Hilzoy and the others who agree are, in my view, correct. Ricci is an embarassment to be called not as Ricci but as a symbol of the depths to which Rs on the committee are willing to sink.
If I were Specter, or Leahy or any other D, I'd just say to him that it's another sad day for politics that the Rs on the committee would rather grandstand than address the body of work Judge Sotomayor has compiled in 20 years as a Federal judge.
Thank you for your appearance, we have no questions. Goodbye.

That's all folks. Otherwise you run the risk of making him sympathetic on soundbite central. Where's the upside in that?

If Ricci is not the Republican Party's excuse to vote partisan on this issue, what will be?
That is all that he is. An excuse to vote partisan.

Whether the Democrats should question him or not depends entirely on whether Ricci is married, if his wife comes to the hearing, and whether she is prepared to cry on cue.

Ricci is an embarassment to be called not as Ricci but as a symbol of the depths to which Rs on the committee are willing to sink.

Yes, the modern GOP is very sensitive to embarrassment.

If I were Specter, or ...I'd just say to him that it's another sad day for politics ...

I can already see the GOP caucus sweating bullets at the thought. The Dems might ADMONISH us! Ow ow ow! Or even...play the *'another sad day'* card! Oh, the humanity.

('Another sad day' indeed; how many thousands of sad days would this make?).

That said, it is possible that the best way to deal with this is to just ignore it, not fuel it. But I have not seen a convincing argument that doing research on Ricci is a mistake. I mean, why? You don't have to use it, and you may not find anything worth using - or anything ethical to use - anyway.

" "because that is what I believed the law required me to rule, and four Supreme Court justices agreed with the way I ruled."

None of the Supreme Court justices agreed with the way she ruled. 0 out of 9 thought it was the proper approach to the case.

Too bad posting rules don't include a prohibition on saying things you know are either untrue or misleading.

"I am dyslexic and it has affected my life, and I would rather see racial discrimination dealt with first."

Cool; In the Ricci case, he was fighting against racial discrimination. That it happened to be a sort of racial discrimination Democrats typically approve of doesn't change that.

"That also leads to this question--How is it that someone who sued that he was discriminated against because he was dyslexic, was able to “ace” a promotion exam nine years later?"

Having a relative who's dyslexic, I can assure you that there's a fourth way: By working harder than the people who took the test who weren't dyslexic. By all accounts Ricci put in an insane amount of work to pass that test, so I wouldn't suggest any questions intended to impeach hs test performance, they're likely to backfire.

...and Brett misses the point.

Being dyslexic doesn't mean you can't pass written tests: it does mean you need special support to ensure that your inability to spell/punctuate correctly means your written work isn't marked down.

Learning/coping strategies for dyslexics have moved on astonishingly now and nine years ago: no one should be surprised that a person with dyslexia can now ace a written test. (A close friend who's about my age, earlier this year, who was so dyslexic she didn't learn to read till she was 12, recently got her degree - with commendations from all her instructors. I proofread her essays, and they were excellent.)

The recognition that a person with dyslexia is as bright and capable as the next person, and can prove it if given a fair opportunity - not identical, but fair, is a direct parallel to the same civil rights principles that caused the tests which appeared to be designed for white people to pass, to be withdrawn. Not because having dyslexia and being black are in any way equivalent, but because it's now recognized that giving everyone a fair opportunity does not mean putting down an identical opportunity in front of everyone and calling that "fair".

Civility has no place in American politics!

True civility has never been tried, as far as I can tell.

"True civility has never been tried, as far as I can tell."

People were overall extremely civil to George Washington.

"The recognition that a person with dyslexia is as bright and capable as the next person"

It's not a secret, and it's in the public record, that Samuel R. "Chip" Delany is dyslexic.

And his manuscripts, I can testify from multiple experiences, show it; they're full of misspellings and punctuation choices he constantly later revises.

But as "bright and capable as the next person" goes, Chip is, of course, an amazing genius. And one of the greatest writers the world has known.

That he's subject to trouble spelling hardly changes this.

People were overall extremely civil to George Washington.

To his face, certainly; given his size and his famous temper, I'd be civil, too.

However, the Jeffersonian press were vicious, at least during his second term.

"Being dyslexic doesn't mean you can't pass written tests: it does mean you need special support to ensure that your inability to spell/punctuate correctly means your written work isn't marked down."

We're talking about a guy, per his litigation history, who had to mention that he was dyslexic, for them to notice. And the record doesn't say that he got special accommodations to pass THIS test. Being dyslexic doesn't necessarily mean that you can't spell, it frequently means you find it really difficult, but can still out-do others on tests, without special accommodations, by working hellishly hard.

Which is what Ricci did. I seriously suggest you do NOT try to make him look unsympathetic, given the amount of study he can prove he put in to ace this test. Horatio Alger still has a certain resonance in this country.

"Horatio Alger still has a certain resonance in this country."

Which absolutely fascinates me, given that nobody in the past sixty years seems to have read any of the damn things.

I've written about this here before. As Wikipedia mentions:

[...] The characters in his formulaic stories improved their social position because of auspicious accidents as opposed to hard work and denial.[2]

[...]

Ironically, in some of Alger’s works there is an implied belief in hereditary determinism, explicitly contrasting achievement based on merit.[4]

Yes, you're right that there's a lot of resonance for this in America.

Mark Twain wrote a little piece both summarized and repeated here:

Between the late 1860s and his death in 1899, Alger published more than 100 of these formulaic stories about poor boys who made good more often because of fortunate accidents than because of hard work and denial.
A bit of the only slightly longer Twain:
[...] But the little boy picked up something, and stuck it in his poor but ragged jacket. “Come here, little boy,” and the little boy did come here; and the bank man said: “Lo, what pickest thou up?” And he answered and replied: “A pin.” And the bank man said: “Little boy, are you good?” and he said he was. And the bank man said: “How do you vote?”—“excuse me, do you go to Sunday school?” and he said he did. Then the bank man took down a pen made of pure gold, and flowing with pure ink, and he wrote on a piece of paper, “St. Peter”; and he asked the little boy what it stood for, and he said “Salt Peter.” Then the bankman said it meant “Saint Peter.” The little boy said: “Oh!”

Then the bank man took the little boy to his bosom, and the little boy said, “Oh!” again, for he squeezed him. Then the bank man took the little boy into partnership, and gave him half the profits and all the capital, and he married the bank man’s daughter, and now all he has is all his, and all his own too.

I'm going out on a limb here, but I think it's possible you might actually have not read any Horatio Alger stories, or anything about them. Is this sort of thing what you actually mean Ricci did?

Why people seem to think Horatio Alger stories worked the opposite of the way they actually did, I've yet to run across. Other, that is, than my general observation that most people don't actually know how to read remotely carefully.

Actual Horatio Alger chapter. It's quite short, really. As the summary says:

[...] In this selection, young Frank grabs the proverbial golden ring of success less by pluck than by sheer luck.
Actual ending of the chapter, and summary of how the story concluded:
[...] Though Frank was so near the end of his money, he had something to look forward to in his approaching interview with Mr. Percival. He had been able to do this gentleman a service, and it was not unlikely that the capitalist would wish to make him some acknowledgment. Frank did not exaggerate his own merits in the matter. He felt that it was largely owing to a lucky chance that he had been the means of capturing the bond robber. However, it is to precisely such lucky chances that men are often indebted for the advancement of their fortunes.

[In subsequent chapters Frank’s “lucky chance” leads to employment with Mr. Percival and his “advancement” in the world.]

I beat this home because I don't know why tf people think "Horatio Alger story" means the story of people who through hard work get ahead in life. That's the exact opposite of what he wrote about, which is that you get ahead by wacky luck.

A fair enough point. What people imagine Horatio Alger was about still has resonance, then. It's not going to help you to be pointing out what Horatio Alger was really about, when people are admiring Ricci for getting ahead by hard work despite a handicap. Your best bet, such as it is, is to just admit he's going to be a sympathetic witness, and avoid as much as possible asking him anything. It's not like the press are going to have much interest in reporting any questions Republicans ask of him; It might jepardize the bailouts they're anticipating.

I agree - leave Ricci alone.

If he does testify, the Democrats can handle that without trashing him as a person.

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