On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.Sotomayor's confirmation is an all but forgone conclusion. The point now is to obscure or discredit, after having failed to bury, Ricci, something Sotomayor attempted as an appellate court judge. Despite the White House's later attempt to portray Sotomayor's vote there as admirable judicial restraint, the true nature of that decision--dodging a constitutional question in fear of its consequences--was exposed at the time in Jose Cabranes' dissenting opinion (PDF). A judicial advocate of a certain interpretation of law welcomes the opportunity to make that interpretation--if it can be made without looking foolish or inept, thus later precluding such as a supreme court nomination. Luckily for Justice Ginsburg, she has no such worries (or shame).
Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he's dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised. The Middletown-area fire department was subsequently fined for safety violations, but the Connecticut Department of Labor dismissed Ricci's retaliation complaint.
Aside from the fact that Frank Ricci's history has no bearing on the legal question presented by Ricci v DeStefano, and liberal critiques of the ruling have depended on ignoring or mischaracterizing the actions of New Haven's mayor (in collusion with--or under threat by--an openly bigoted, convicted felon community organizer), PAW, in its desperation to obscure the corrupt machine politics arising from, and the legally unsustainable basis of, "disparate impact" as a model for anti-discrimination law (indeed, the fundamental conflict between "disparate impact" and "disparate treatment" which this case exposes), wants you to deplore Frank Ricci (and the lawsuit that bears his name) for (1) having the temerity to file a discrimination lawsuit, and (2) having once been fired.
The irony of a "liberal" effort to discredit someone for filing a discrimination lawsuit and losing his job, possibly for "whistleblowing", is further proof that fiction cannot compete with reality. "Bleeding Heart Liberals", we hardly knew ye. Whether PAW is oblivious to, or merely takes for granted, the legal reality that who is entitled to legal protection from discrimination is a matter of some discrimination, I cannot decide. But it's either sublime confidence or sheer nerve, provoking the public's habitual skepticism toward discrimination litigation in what is ultimately an attempt to preserve its current foundation. That very skepticism is what PAW and others typically identify as racism, reaction, ignorance, etc.
The open disdain of some for certain classes of people, including those who dare challenge quota hiring, is the flip side of a certain philosophy that, in this debate, falls under the shorthand term, empathy. If the word is not merely superfluous twaddle (and we have to assume it is used for some purpose), and has meaning, it must assign relative values of moral worth, holding other values constant, to classes of persons; these values must then bear upon the application of law. Minority trumps majority, female trumps male, poor trumps rich, etc. Of course this is nothing more than current "liberal" convention plainly expressed, which is precisely why some seize on the president's coded invocation to expose that convention. "Empathy" here is a euphemism for "favor."
The oblique and muted liberal critiques of Ricci have featured just this sort of reasoning, by people too steeped in their conditioning to recognize it; is it not empathy for the "white firemen" after all, to find in their favor? Categorically, no. They earned the decision by virtue of being right. Why, some have asked, are the Republicans calling Frank Ricci to testify? Is it not because he is sympathetic? Yes--but the confirmation process is a political process. The valid political counter-argument to Ricci's testimony would be to call Mayor DeStefano, for instance, to testify; this would also be a means of putting our "empathy" to work for us in deciding who deserves it more. It would further be an expression of confidence in the logic and justice of this faction's position.
Both sides on the Ricci divide were citing a political factor when describing the plaintiffs as "sympathetic." The best defense of "empathy" thus lapses into absurdity: it doesn't mean anything specifically, just that we should be good. When your best defense is irrelevance, it's time to concede.
A faction laying claim to "empathy" or any other virtue (think "patriotism", for instance), would make a talisman out of a word. It's not the enlightenment arising from meaning but the obscurity of emotion they invoke. Otherwise empathy is meaningless, as its defenders here have ably demonstrated.
The law is there to to limit power and just the sort of demagogy that invariably invokes such words as empathy. In the Ricci case the law served just that purpose. Watching the knives come out for Mr. Ricci, we see the ruthlessness upon which an unyielding claim to virtue is dependent. What is the law before virtue itself, after all? Empathy, like the classic liberal ideal, has been distorted by the political reality of modern America into its opposite.