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Commentary: A litmus test that counts

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As the time approaches for President Obama to choose a successor to Justice David Souter, the term "litmus test" will be heard throughout the land. The White House will deny applying any such thing, but the nominee will undoubtedly be chosen according to where she stands on abortion, unions and other issues beloved by liberals. This is fine with me, but what I want to know is where she stands on Frank Ricci. He's a fireman.

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He is also the lead plaintiff in a case recently argued before the Supreme Court. It was Ricci's misfortune to take -- and pass -- the New Haven, Conn., fire department's promotion exam for lieutenant, and then have the job denied him because he is white. Others will argue -- fatuously and, when they are before St. Peter, with head bowed in shame -- that race had nothing to do with what happened to Ricci, but the fact remains that had he been black, his uniform would already sport a lieutenant's bar.

It is also Ricci's misfortune to be dyslexic. This means that he had to study extra hard and extra long for the exam, up to 13 hours a day. He gave up a second job and paid an acquaintance more than $1,000 to read the suggested textbooks onto audiotape. In the end, Ricci's effort paid off. Among 77 candidates for eight vacancies, he had the sixth-highest score.

Alas, none of those who qualified were black. This is a pity, but not really Ricci's fault. In his 11 years as a firefighter, nothing in the record suggests he had done anything to retard the progress of blacks or Hispanics, so it is not clear why he should be denied promotion. The answer, as we all know, is that the individual counts for naught in such matters -- it is the group that is paramount.

Ricci is white and white was not what New Haven really was looking for. The city threw out all the exam results and, in an example of perverse equity, promoted no one. It declared that since no one had been promoted, no one had suffered -- not even Ricci, who had somehow thought that hard work would be rewarded.

We should never confuse unfair with illegal. Still it would be nice if every once in a while they coincided. This is especially the case in matters such as this because the justification for affirmative action gets weaker and weaker. For most Americans, race has become supremely irrelevant. Everyone knows this. Every poll shows this. Maybe the Supreme Court will recognize this.

Liberalism, a movement in which I hold a conditional membership, would be wise to get wise to what has happened. Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules -- oops, you're white. Sorry, not what we wanted. As a consequence, it was not racists who were punished, but all whites. There is no need to cling to such a remedy anymore. There is, though, every need to retain and strengthen anti-discrimination laws, especially in areas such as fire departments, where racial discrimination was once endemic. Sufficient progress has been made to revert to treating individuals as individuals.

Bill Clinton tried to square the circle of affirmative action in his "Mend It, Don't End It" speech of 1995. It was a moving and eloquent address in which he recounted his region's history, reminding us of the depth and ferocity of racism in the South and elsewhere. Trouble is, the New Haven case proves that affirmative action was not mended at all. It remains noble in its ends, atrocious in its means and now provides Obama the chance to use his own family's history -- indeed his own history -- to show why it ought to conclude.

Ricci is not just a legal case, but a man who has been deprived of the pursuit of happiness on account of race. Obama's Supreme Court nominee ought to be able to look the New Haven fireman in the eye and tell him whether he has been treated fairly or not. There's a litmus test for you.

Richard Cohen's e-mail address is cohen@wctrib.com.

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