Is Sotomayor Too Empathetic? Not Empathetic Enough?
The likely case conservatives will unite around to bloody Sonia Sotomeyer is the affirmative action suit Ricci vs. DeStefano. It's already been in the Wall Street Journal. Richard Cohen wrote about the case for this newspaper.
But so far, most of the commentary has focused on Frank Ricci, a dyslexic firefighter who studied endlessly and hired someone to read him flash cards before a tough test that would decide a promotion. Ricci passed, but the test results were thrown out. The reason? Not enough African Americans cleared the exam, and the department worried it would be sued under Title VII. Ricci's tale is troubling. It's hard not to feel for him.
Ricci's experience, however, is not related to the legal questions presented by the case. As Dylan Matthews explains at Campus Progress, Sotomayor appears simply to have addressed the question before the court: That question was whether the county had reason to believe that the test results left it vulnerable to a lawsuit. Indeed, as Dahlia Lithwick and Doug Kendall argue over at Slate, Sotomayor is being attacked for something relatively odd: Rather than empathizing with Ricci, she ruled on the legal issue at hand. And that meant ruling against Ricci.
Conservatives, thus, are in the awkward position of choosing one of two lines of attack. You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can't argue both.
(Photo credit: White House.)
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