July 17, 2009 | Commentary on Legal Issues
The Republican senators questioning Sonia Sotomayor about her decision in the Ricci v. New Haven case have done a fair job detailing the legal issues. But no one has gone into the details of what really happened in that case, or the fact that by ruling as she did, Sotomayor attempted to create a new rule that would have given carte blanche to local governments and other employers to resort to the worst kinds of invidious discrimination for base political reasons.
The prime instigator of the discriminatory treatment of the New Haven firefighters was John DeStefano, the city's mayor. He is the stereotypical example of the parochial, patronage-granting local politician. It is precisely because of politicos like him that the Connecticut Supreme Court has consistently mandated strict compliance with state civil service laws, trying to keep local governments free of favoritism and corruption.
In fact, before the Ricci case became a cause celebre, DeStefano's administration had drawn multiple, stern rebukes from state judges for "blatant lawlessness" and for employing "charades" and "subterfuge[s]" to subvert the law. He was accused in multiple suits of repeatedly and intentionally discriminating against whites and manipulating civil service exam results for political gain.
DeStefano appointed one of his biggest political supporters and vote-getters, local black minister Boise Kimber, as chairman of the Board of Fire Commissioners, despite the fact that Kimber had no experience whatsoever in firefighting or even municipal management. Kimber is known locally as a "kingmaker" who calls whites racist if they question his actions. He once threatened race riots during the murder trial of a black man arrested for killing a Yale student.
Kimber stepped down as chairman of the Fire Board only after it became public that he had told firefighters that certain new recruits would not be hired because "they just have too many vowels in their name[s]." However, he remained a board member. DeStefano even testified as a character witness for Kimber when the reverend was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about it under oath.
Kimber pressured not only the mayor, but the Civil Service Board that had to certify the results of the firefighter's exam. He engaged in a loud, minutes-long outburst at a CSB meeting, requiring the CSB chairman to shout him down and hold him out of order three times.
One of Kimber's political friends and allies, Lieutenant Gary Tinney, also engaged in the same kind of racial demagoguery at the CSB meeting, exclaiming publicly that other firefighters who were there to support certifying the test results were "Klansmen." This is the same Gary Tinney who accused white firefighters of cheating on their exams, a claim that turned out to be baseless. Yet the city's chief administrative officer, another mayoral crony, told the CSB about Tinney's accusation without investigating its veracity.
Both of New Haven's fire chiefs, one white and one black, believed the firefighters should be promoted. But the mayor prevented from them making any statements about the matter. Kimber made it clear to DeStefano that he would incur his wrath if the firefighters who scored highest on the civil service exam were promoted.
DeStefano and other city officials then did everything they could behind closed doors to convince the CSB not to certify the results. But the mayor had already decided to use his executive authority to disregard the test results -- even if the CSB ultimately voted to certify them. As you might expect, however, given the squalid corruption of New Haven politics, that did not happen.
The dirty, sordid nature of the outright racial discrimination that occurred in New Haven reads just like the stories of racial discrimination in the South 40 years ago -- only the races are reversed. But the very same invidiousness is present, what Chief Justice Roberts calls the "sordid business [of] divvying us up by race." Sonia Sotomayor has made a point at her hearing of talking about how "thorough" she is about learning the facts of the cases before her. So, taking her at her word, she must have known what was going on in New Haven.
Technicalities aside, the plain fact remains that President Obama's nominee for the U.S. Supreme Court, Sonia Sotomayor, approved outright racial discrimination carried out by a petty local politician who didn't want to upset a "politically important racial constituency" led by a man who was forced to resign for making ethnic slurs in the course of advocating discriminatory hiring practices, and convicted for perjury and stealing funeral money from the elderly.
Sotomayor thinks that the facts and the law so clearly favored the City of New Haven that the victims of this discrimination didn't even deserve a trial -- a position soundly rejected by all nine Supreme Court justices who reviewed the case. Sordid indeed.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.
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