Criticize, then confirm Sotomayor

Sonia Sotomayor has a classic American story. So does Frank Ricci.

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study, and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the exam, which qualified him for promotion. The exams were thrown out by the city, all promotions denied, because no blacks scored high enough.

Ricci (with 19 others) sued.

That's where these two American stories intersect. Sotomayor was a member of the three-member circuit court panel that upheld the dismissal of his case.

Two things are sure to happen this summer: The Supreme Court will overturn Sotomayor's panel's ruling. And, barring some huge hidden scandal, Sotomayor will be elevated to that same Supreme Court.

What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. The argument should be elevated, respectful and entirely about judicial philosophy.

On the Ricci case. And on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats' enthrallment with identity politics.

Sotomayor shares President Obama's vision of empathy as lying at the heart of judicial decision-making. Since the 2008 election, people have asked what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy - and unequivocally for blind justice.

Empathy is a vital virtue to be exercised in private life and in the legislative life of a society where consequences of any law matter. But that stops at the courthouse door. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds that a president is entitled to deference on his Supreme Court nominees. Elections have consequences.

Vote Democratic and you get mainstream liberalism: A judicially mandated racial spoils system and a jurisprudence of empathy that hinges on which litigant is less "advantaged."

A teaching moment, as liberals like to say. Clarifying and politically potent. Seize it.

© 2009, The Washington Post Writers Group