What if they gave a culture war and no one came?

Frank Ricci, this week's poster boy for oppressed white males everywhere, declines to attack Sonia Sotomayor

By Mike Madden
July 17, 2009 2:19PM (UTC)
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The surest sign the White House isn't worried at all about whether Sonia Sotomayor will win confirmation to the Supreme Court came on Thursday afternoon, a few hours after Sotomayor had finished enduring three days of mind-numbingly repetitive questions from the 19 members of the Senate Judiciary Committee.

All week, the major Republican line of attack against her has been a simple one: She's racially biased, and she won't judge fairly and impartially. To prove that, the GOP has relied on a handful of speeches and her ruling in one controversial case out of New Haven, Conn., which found the city had acted properly by throwing out the results of a promotion exam for firefighters over concern that minority candidates were disproportionately likely to fail it; the Supreme Court overturned Sotomayor's ruling earlier this summer. And to make sure the point was driven home without any danger of subtlety, Republicans arranged for two of the firefighters to testify, calling them as witnesses in the Thursday afternoon portion of the hearing that dealt with Sotomayor's record and qualifications.


Looking sharp in their dress blue uniforms, the firefighters, Frank Ricci and Ben Vargas, had a sympathetic story to tell; Republicans must have been praying the Democrats on the committee would attack the two of them in the course of defending Sotomayor. But the majority side didn't take the bait -- they knew they'd already won, so why bother? They made nice instead. "I personally want to thank you for being here," Sen. Ben Cardin, of Maryland, told Ricci and Vargas. "You put a face on the issues ... you have really added to today's hearing by your personal stories." With even Jeff Sessions, the leading Republican on the panel, conceding that the GOP won't try to stop Sotomayor's confirmation, there was no reason for administration officials to tell Democrats to play hardball with the witnesses.

Of course, that only underscored the extent to which their presence at the witness table was a cheap political stunt. Ricci and Vargas made up a panel with New York Mayor Mike Bloomberg, Manhattan District Attorney Robert Morgenthau, Arkansas Attorney General Dustin McDaniel and Leadership Conference on Civil Rights CEO Wade Henderson, as well as two other GOP witnesses, Peter Kirsanow -- a member of the U.S. Equal Opportunity Commission -- and Linda Chavez, an anti-affirmative action activist. The crowded panel made for a disjointed question-and-answer session (made worse because Bloomberg strolled in late, interrupting things), and it was immediately clear that Ricci and Vargas were mostly being used as props. Even the Republicans barely asked them any questions.

In the end, only one senator, Arlen Specter, the Pennsylvania Republican-turned-Democrat, even attempted to raise the one question that would have actually explained their presence. "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?" Specter asked Ricci.


Ricci -- finally given the chance to stick it to the "wise Latina" judge who, in the GOP's feverish imagination, at least, had tried to ruin his life -- took a pass. "That's beyond my legal expertise," he said, without hesitating. "I am not an attorney or a legal scholar. I simply welcome an invitation by the United States Senate to come here today." For the most part, Ricci didn't try to make any sweeping claims about justice, or about race. Some of his opening statement sounded like it was meant for a different hearing, one on federal grants to local first responders: "The structures we respond to today are more dangerous, constructed with lightweight components that are prone to early collapse, and we face fires that can double in size every 30 to 60 seconds."

But just because Ricci and Vargas didn't get beaten up by Democrats at all didn't mean they escaped the hearings unscathed. After a whole week of uncomfortable, resentment-ridden discussion of race in America, the GOP still had a little bit of awkwardness left. "I just want you to know if the country that we're probably one generation removed to where no matter how hard you study, based on your last name or the color of your skin, you'd have no shot," Sen. Lindsey Graham, a South Carolina Republican, told Ricci. "And we're trying to find some balance ... please don't lose sight of the fact not so very long ago, the test was rigged a different way."

That was a fair point, and a lot closer to a defense of affirmative action than anyone on the Democratic side offered Ricci. But then Graham turned to Vargas, who joined Ricci's lawsuit even though he is, himself, Puerto Rican. Vargas had testified that he wanted to help prove that opportunity truly is equal; he had passed the New Haven promotion exam, even if some other minority applicants hadn't, and he wanted to be dealt with as an individual, not a "racial statistic." Graham, apparently, didn't entirely see it that way.


"Mr. Vargas, you're one generation removed from where your last name would have been [enough to deny him the job]. Do you understand that?" Graham asked. He pushed further, asking what happened when Vargas joined the lawsuit. "Did people call you an Uncle Tom? People thought you were disloyal to the Hispanic community?" Vargas answered yes, sounding a little uncomfortable, and Graham kept going. "Quite frankly, my friend, I think you've done a lot for American-Hispanic community," Graham said. "My hat's off to you."

The rest of the panel offered pretty much exactly what you might expect. Chavez, who's made a career out of insisting -- against all available evidence -- that America really is the colorblind paradise Republicans say they want, dredged up Sotomayor's college thesis to build a case against her; it was the sort of stuff people threw against Michelle Obama during last year's campaign. "It is clear from [Sotomayor's] record that she has drunk deep from the well of identity politics," Chavez warned. "I know a lot about that well, and I can tell you that it is dark and poisonous."


But as with Ricci and Vargas, almost no one took the bait. Any energy and drama that had been left in the hearing room were finally spent. By the time the hearing rolled past 6 p.m. Eastern, the crowd had dwindled, and there were hardly any reporters or members of the public left to listen to even less controversial GOP witnesses as they tried everything from guns to abortion to French law to fear of crime to ignite the culture wars again. This fight has been over since before it began; President Obama had stacked the deck too neatly. Four days of hearings demonstrated what everyone already knew about Sotomayor: She's obviously qualified, she's not remotely the radical activist the right says she is, and her appointment as the first Latina justice truly will make history. The only question left by the end of the day Thursday was exactly when the Senate would get around to making her confirmation official. 

Mike Madden

Mike Madden is Salon's Washington correspondent. A complete listing of his articles is here. Follow him on Twitter here.

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Arlen Specter D-pa. Lindsey Graham Sonia Sotomayor