Ricci may be a “hot topic” during Sotomayor’s confirmation hearing

The confirmation hearing for Judge Sonia Sotomayor’s nomination to the U.S. Supreme Court is scheduled to begin on Monday morning (July 13, 2009). If confirmed, she will be the first Hispanic, and the third woman, to be an Associate Justice on the High Court. Judge Sotomayor currently sits on the U.S. Court of Appeals for the Second Circuit.

While Sotomayor has received significant support in favor of her nomination, what should really spark interest in Monday’s hearing will be the appearance of two witnesses who were part of the Ricci v DeStefano litigation. Ricci is the reverse race discrimination case decided by the Supreme Court last week (07-1428). In that decision, the High Court held that the city’s refusal to certify firefighters’ promotion exams to avoid a potential race discrimination lawsuit from minority firefighters was discriminatory. A divided Supreme Court (5-4) reversed the Second Circuit’s affirmation of the district court’s grant of summary judgment to the city.

On the list of witnesses invited to appear before the Senate Judiciary Committee (http://judiciary.senate.gov) were the names Frank Ricci and Lieutenant Ben Vargas. Both Ricci (Director of Fire Services, ConnectiCOSH (Connecticut Council on Occupational Safety and Health)) and Vargas (New Haven Fire Department) were plaintiffs in Ricci v DeStefano. Vargas has the distinction of being the lone Hispanic plaintiff.

One of the reasons Ricci was so closely watched was Sotomayor’s participation as part of the Second Circuit’s panel that affirmed the district court in an unpublished order that was later withdrawn and replaced with a per curiam opinion and an order denying a rehearing and rehearing en banc with written concurrences and a dissent. Will these men be a roadblock in Sotomayor’s path to the High Court? What can they say about her legal analysis and/or performance in a case that was ultimately decided so closely? Particularly when the now-retired Justice Souter (who’s seat she is slotted to fill) voted to affirm the circuit court? Will there be any fallout from Ricci for Sotomayor?