Posted by Curt on 31 May, 2009 at 2:27 pm. 17 comments already!

The Wall Street Journal got their hands on a recording of the Ricci v. DeStefano hearing that is much talked about when Sotomayor’s name comes up.


During the audio you will hear Judge Pooler, Judge Sotomayor and the attorney for the firefighters, Karen Lee Torre. There are a few interesting snippets from the audio like when Judge Pooler asks of Torre why shouldn’t Hayden v. County of Nassau dispose of the Ricci case. Torre says in effect that in Hayden no one was hurt. Pooler says that no one was hurt in Ricci either at which point Torre interrupts and says:

No one was hurt? For heaven’s sakes, judge, if they didn’t refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren’t hurt? They’re out $1,000 a piece. Half of their marriages were strained by this. They spent 3 months of their lives holed up in a room like I was and you were when we took the bar exam.

Torre also does an outstanding job of detailing why throwing out an exam in favor of an easier one would cost lives:

I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. … Please look at the examinations. … You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn’t require any knowledge to do the job.

Not long after is when Sotomayor comes in:

JUDGE SOTOMAYOR: Counsel … we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there’s an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you’re unqualified–the pass rate is the pass rate–all right? But if your test is always going to put a certain group at the bottom of the pass rate so they’re never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?

KAREN LEE TORRE: Because they already developed it, your honor.

JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it’s valid.

KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid…. They had evidence that the test was job-related and valid for use under Title VII.

I can’t wait to hear the evidence that Sotomayor has that would prove the test was “always” going to put certain groups at the bottom of promotion lists.

John McCormack asks the same thing:

Did she actually examine the test to see if it was unfair to a particular group? And, how, precisely, does she think it’s possible to create a test that “measures knowledge in a more substantive way”?

I’m hoping this stuff will be asked during her confirmation hearing.

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