It turns out the symbol is imperfect but the substance remains.

The liberal group People for the American Way, a strong defender of affirmative action, emailed reporters Friday about “Frank Ricci's troubled and litigious work history.” As a McClatchy story reported, the opposition research is reminiscent of the “sharp elbows” seen in the character assassination of Anita Hill, who testified against Clarence Thomas.

Sonia Sotomayor's confirmation hearings this week will not be as controversial as Thomas. And like Thomas, she will surely be confirmed. Conservatives are mounting a pro forma fight.

But Sotomayor will face some unflattering testimony, none more anticipated than Ricci's. Ricci was the white New Haven firefighter who served as the lead plaintiff in the recent reverse discrimination case.

In a tangential revelation Friday, it turns out that Ricci is not a reluctant litigant. The People for the American Way email charted past lawsuits filed by Ricci, including a 1995 case where he argued that the city violated the Americans with Disabilities Act for allegedly disqualifying him due to his dyslexia. Friday evening, Slate's Dahlia Lithwick wrote an article on Ricci's litigious background.

“Ultimately,” Lithwick wrote, “there are two ways to frame Frank Ricci's penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers” or he is a plaintiff “who reacts to professional slights and setbacks by filing suit.”

Slate's Lithwick, one of the most influential legal writers in the country, infers that Ricci's litigious history undercuts the substance of his argument. She led her article by partly recounting a line of mine:

“Ricci has become a sort of folk hero for white men everywhere, having dared to stand up against the evils of affirmative action and race-based employment preferences. Next week, he will be called on to make the point, as David Paul Kuhn put it, that Sotomayor, for all her talk of empathy and the real-world impact of judicial decisions, "demonstrated no empathy for the 'real-world consequences' of affirmative action on Ricci."

Lithwick went on to write that “Ricci is invariably painted as a reluctant standard-bearer; a hardworking man driven to litigation only when his dreams of promotion were shattered by a system that persecutes white men.”

Criticism of the New Haven ruling did not center on whether Ricci was a reluctant warrior. His case earned attention because it personified how affirmative action's preferences for some inherently denies opportunities to others.

It's an old trick of debate to take your opponent's argument to an absurd extreme and therefore frame the entire argument as absurd. No reasonable critic of affirmative action, who understands the ocean of historic injustice it was attempting to alleviate, believes affirmative action is “evil” or “persecutes white men.”

But by design, affirmative action attempts to correct discrimination with discrimination. The policy offers opportunities to some Americans because of their race and/or gender, who otherwise do not qualify. That means someone who was qualified did not get the job or into the college. And yes, that person is usually a white male. Let's be honest about the debate.

Ricci's litigious background does not, after all, change the facts of the case. He still gave up a second job to study. He still paid an acquaintance more than $1,000 to read textbooks onto audiotapes in order to overcome his dyslexia. Ricci still studied 8 to 13 hours a day for the exam. That exam was still designed by an agency that specializes in preparing race-neutral promotional tests that are job relevant. Ricci still passed that exam, earned the promotion, only to be denied the opportunity as a consequence of his race.

The most sympathetic plaintiff is traditionally placed at the helm of significant cases.

I would agree with Lithwick that the Ricci case should force the political right to confront the upside of the doggedly litigious among us.

But Ricci's past does not change this case, nor the need for many liberals to confront the downside of affirmative action.

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