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Firefighters but No Brimstone

By Dana Milbank
Friday, July 17, 2009

Frank Ricci was to be Sonia Sotomayor's Anita Hill.

The boyish firefighter from New Haven, Conn., white and male, was denied his promotion when the city threw out the qualifying test that Ricci but too few minority candidates passed. He became the lead plaintiff in a lawsuit and was shot down on appeal by Sotomayor -- a decision Republicans held up as evidence that the Supreme Court nominee favors reverse discrimination against white men.

As Hill was to Clarence Thomas in 1991, Ricci was opponents' best hope of defeating the nominee, and so he became, as Sen. Ben Cardin (D-Md.) put it, "a name that's been mentioned second only to Sotomayor during this hearing."

Ricci, wearing his firefighter dress uniform, testified to the Senate Judiciary Committee on Thursday that for the exam, he "studied harder than I ever had before, reading, making flashcards, highlighting, reading again, all while listening to prepared tapes."

Tracing the words of his statement with his index finger as he read -- a sign of the dyslexia he fought to pass the exam -- Ricci went on: "The Court of Appeals panel disposed of our case in an unsigned, unpublished summary order that consisted of a single paragraph."

Even the Democrats had to admit he was a compelling witness. But as a Sotomayor slayer, fireman Ricci didn't hold water. The nominee seems headed to confirmation without a fuss -- and, as it turned out, even Ricci didn't seem to have much of a problem with that.

The false alarm was exposed by none other than Sen. Arlen Specter (D-Pa.), who, as a Republican 19 years ago, gained notoriety for his hostile questioning of Hill. "The question that I have for you: Do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?" he asked.

It was Ricci's chance to stoke the fire, but he smothered it instead. "That's beyond my legal expertise," he demurred. "I simply welcome an invitation by the United States Senate to come here today."

Democrats were relieved. "Very, very helpful," exulted Cardin, acting as chairman. "Each one of us thanks you for your public service, and we thank you for your belief in our nation."

The Ricci battle had been shaping up as a showdown, particularly because the Supreme Court reversed the decision in the case last month. Fearing damaging testimony from the firefighters, the liberal group People for the American Way sent an e-mail about "Frank Ricci's troubled and litigious work history." Sen. Orrin Hatch (R-Utah) fought back at Tuesday's hearing, saying that the group "has been smearing Frank Ricci."

There were so many New Haven firefighters at the hearings on Wednesday and Thursday that Connecticut residents would have been well advised not to light matches this week. They sat side by side in matching uniforms, broad and beefy, a few chewing gum. "I'm glad," Sen. Jeff Sessions (R-Ala.) said, that "we'll have the firefighters."

Not long after Sotomayor left the witness table, Ricci took her place, along with Ben Vargas, a Hispanic firefighter who joined the lawsuit because he, too, was denied a promotion despite months of study to pass the test. "I knew we would see little of my sons during these months, when I studied every day at a desk in our basement, so I placed photographs of my boys in front of me," he testified.

When the two firefighters were done, Sessions got to work. "That was a moving story you gave us," he said. But Republicans had trouble benefiting from the firefighters' story, in part because the crowded panel also included New York Mayor Michael R. Bloomberg (I) and conservative commentator Linda Chavez, who went over the top with a warning that the nominee had "drunk deep from the well of identity politics," which is "dark and poisonous."

Sessions, leading the Republicans' Ricci movement, was distracted. He found himself telling another witness, civil rights leader Wade Henderson: "Senator Leahy and I are talking, during these hearings, we're going to do that crack cocaine thing that you and I have talked about." After the laughter subsided, Sessions said he was talking about sentencing guidelines.

The next Republican questioner, Sen. Lindsey O. Graham (S.C.), wasn't any more helpful to the case. "Mr. Ricci, I would want you to come to my house, if it was on fire, and I appreciate how difficult this must have been for you to bust your ass and to study so hard," he said. But, he added: "Please don't lose sight of the fact that not so very long ago, the test was rigged a different way."

Hatch tried, without much success, to rekindle the Ricci case against the nominee. "This is not some itty-bitty case," he protested. "This is one of the most important cases in the country's history."

But it was no use. Specter reminded the committee that the Supreme Court was itself divided on the case. "When you have 5 to 4 decisions, it's hard to say which way the ball bounces," he reasoned, asking Vargas, as he had asked Ricci, whether he had "any reason to doubt the good faith of Judge Sotomayor."

"We were invited here to give our story, and we wanted to focus on that," the firefighter said. "I really didn't look much to that."

Thus did the New Haven firemen reduce to embers the case against Sotomayor.

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