Sotomayor and the New Haven Firefighters

I've read what Jeffrey Rosen had to say about Sonia Sotomayor, and thanks to Laura Igraham's interview with Karen Lee Torre, got to hear the particulars of the now infamous suit, Ricci v DeStefano, the so-called New Haven Firefighters' case. She refrained from commenting on Sotomayor, but she did say that, after this case, she's giving up the practice of law.

The essence of Sotomayor's role in the Ricci case is this: when a case goes up the ladder to be heard at the appellate level, a tribunal of judges hears it. After the ruling, the losing side may appeal to have the entire bench of the circuit court hear the case (en banc, as they say.) In this case, the en banc rehearing was denied, narrowly, but Judge Jose Cabranes wrote for the dissenters in that decision (joined by the chief judge) that both the district court judge and the circuit court panel (Sotomayor, Rosemary Pooler and Robert Sack) were keeping their reasoning completely under wraps, essentially blanketing the firefighter's claim in a mysterious penumbra. (here's Ed Whelan's detailed look at this decision)

Judge Cabranes draws attention, indirectly but intentionally, to an interesting point that makes this case a real test of the validity of affirmative action as policy and law and as a mechanism for redress.  Ricci is dyslexic.  He is learning disabled.  He studied for months for this exam, which was by all accounts "racially neutral."  He paid over $1000 to have someone record the materials so that he could hear them because he is an oral learner.  In other words, he had to overcome an innate disadvantage.  But he did overcome it.  Like people who are differently colored, his dyslexia is with him for life.  It has undoubtedly closed many doors to him.

So how is he different from the African Americans in the inherent, bottom line philosophical basis of Title VII's application?  He proved that by studying for the exam, even someone with real, measurable deficits in cognitive ability can pass: it was just a matter of working hard.

That's something that many, many people don't want to come to light.