June 29, 2009

"Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race."

Justice Kennedy writes the 5-4 opinion in Ricci v. DeStefano:
The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action....

[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed... and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race....

[T]here is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
Justice Scalia has a concurring opinion to note that it "merely postpones the evil day" when the Court will have to decide whether the disparate-impact provisions of Title VII violate the Equal Protection Clause:
[T]he disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles.
Scalia (who also joins the Kennedy opinion) writes for himself alone. Justice Alito also has a concurring opinion, and he is joined by the Chief Justice and Justices Scalia and Thomas. He criticizes the dissenting opinion for characterizing the City's decision not to cancel the test results as "open, honest, serious, and deliberative":
Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked — as things turned out, successfully — to persuade the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency.

Finally, the dissenting opinion is written by Justice Ginsburg, and she's joined by Justices Stevens, Souter, and Breyer. She chides Alito for "equat[ing] political considerations with unlawful discrimination."
That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency — including a racial constituency — without engaging in unlawful discrimination....
But was it unlawful discrimination?
Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. Justice Alito, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate-impact liability qualifies as a presumptively improper race-based employment decision. I reject that construction of Title VII. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment.

ADDED: This post incorrectly stated that the Chief Justice joined the Alito concurrence. Tom Goldstein observes:
Judge [sic] Alito’s concurring opinion comes much closer to an overt criticism of the rulings of the district court and court of appeals. I found it notable that the Chief Justice - who seems to place a priority on not interjecting the Court into political disputes unnecessarily - does not join the concurrence.

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge [sic] Souter, who she will replace.

204 comments:

1 – 200 of 204   Newer›   Newest»
rhhardin said...

I always wonder what the official story is on 5-4 decisions vs truth.

The only theoretical line that makes sense is that there are four idiots on the Supreme Court.

At least four, I suppose you'd have to amend it to.

Fred4Pres said...

Racism is wrong, no matter how you cut it. Discrimination by favoring one racial group over another, and ignoring objective evaluations is racism.

Lisa said...

Look, the city's problem was they announced the criteria for promotion and when those criteria gave them results they did not want, they changed the criteria.

They only changed the criteria because of the race of those candidates who performed the best.

That is racist and discriminatory.

Good call for the Supreme Court.

AllenS said...

There are presently, 4 racists on the Supreme Court.

Treacle said...

The first line in Ginsberg's dissent: "In assessing claims of race discrimination, '[c]ontext matters.'"

Opening an opinion or dissent like this is a judge's way of telegraphing that she doesn't really care what result should be reached under the law. She's more concerned, instead, with bigger issues that can be advanced by focusing on "context" - not law.

Jason (the commenter) said...

And Souter sided with the minority (ha!) so Sotomayor's appointment would have made no difference in this case.

NKVD said...

What does the wise-ass Latina have to say for her racist self now?

Kev said...

(the other kev)

Yeah, based on what I've read, it definitely seemed to be bad faith on the part of the city. Like having a blackjack dealer suddenly tell you that you need twenty, not twenty-one.

I'm curious as to how the other four justified their votes. It should be interesting reading.

Aaron said...

Amen. this is a victory for the forces opposed to discrimination. Today it was a district court that said that if a white person was denied a promotion because of race it wasn't discrimination if no one got the promoted. tomorrow it would be a black person, or a woman, or a handicapped person. The lower court opinion was an embarrassment, and frankly i am surprised it was this close.

And I admit i feel vindicated.

But then again Kennedy is not really a judge anyway. He goes by his empathy, too. so while i praise the outcome, and even the parts of the opinion i see here, Kennedy is like a broken clock on these things: when he is right, it is highly coincidental.

TRO said...

Good decision . . . both on the law and for the people.

ironrailsironweights said...

We'll probably see more and more government entities dropping competitive exams for hiring and promotion. They may figure that the more subjective methods that the private sector uses are actually less likely to lead to trouble.

Peter

downtownlad said...

I'll tell you what this is. It's judicial activism. Pure and simple.

Henry Buck said...

(moved from prior post)

I see Alito's concurrence as a direct challenge to Obama's "empathy" standard for judges (and a direct dig at Sotomayor as a member of the panel below):

The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law .... And that is what, until today's decision, has been denied them."

downtownlad said...

Why doesn't New Haven just change the exam to be the fastest people in a 100 yard dash. They'll never be a white person promoted again.

Balfegor said...

Look, the city's problem was they announced the criteria for promotion and when those criteria gave them results they did not want, they changed the criteria.

They only changed the criteria because of the race of those candidates who performed the best.

That is racist and discriminatory
.

Sure. They were moving the goalposts -- classic discriminatory behaviour. But look more closely at the opinion. The way it's framed seems to be that the city failed to establish a "strong basis in evidence" that they would have been liable for "adverse impact" if they didn't move the goalposts. Now, the Court does say that the thorough record developed in discovery establishes that they did everything they would need to do to defend against an "adverse impact" claim, and devised the test with careful attention to job requirements etc. etc. etc.

But you can easily imagine what's going to happen next time -- the city will shop around for a detailed legal opinion saying they will be liable for "adverse impact," (essentially a brief arguing for disparate impact liability) and claim that the legal opinion establishes the requisite "strong basis in evidence."

The other thing organizations will do to get around this is ensure that they don't build impartial and difficult-to-game promotion systems into their charters. The problem they ran into here was that their charter required that promotions be awarded to one of the top three candidates, at every turn, moving down the list of candidates. It's not the case that no African Americans passed the tests, after all, just that they weren't represented among the high passers, and would not have been eligible for promotions for something like 10 turns. A system that didn't require the city to promote the top scorers, but let them just choose whoever would have enabled them to avoid this whole problem by jumping the African American passing candidates up ahead of the Whites and Hispanics. They would still face potential liability under an "adverse impact" theory (the racial mix of the passing candidates is a far cry from the 4/5 rule contemplated by current discrimination law), but the motivation to sue would be considerably lessened. People who care about that kind of thing would see people from their own race getting promoted, and that would be that.

hdhouse said...

rhhardin said...
"The only theoretical line that makes sense is that there are four idiots on the Supreme Court."

Oh absolutely. and you have to count Kennedy when he sides with Scalia and cronies. What a shame but at least you admit it.

TRO said...

"The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law .... And that is what, until today's decision, has been denied them."

When your whole political ideology is pretty much based on sympathy you're kind of screwed when judges do their job and ignore it.

downtownlad said...

Does this mean we get to expel affirmative-action appointee Clarence Thomas from the Court? He took a job that was meant for a white guy.

hdhouse said...

NKVD said...
"What does the wise-ass Latina have to say for her racist self now?"

Probably in the context of NKVD's limited mind, that he is a Latina hating racist who operates in a black white world, he being white and everyone else isn't.

She is as much a racist as you aren't a jerk.

TRO said...

"Does this mean we get to expel affirmative-action appointee Clarence Thomas from the Court? He took a job that was meant for a white guy."

Is there something similar to Godwin's Law that applies to the first liberal spouting off a racist remark?

downtownlad said...

Racist?

Sorry - but if you don't think Clarence Thomas was an affirmative action pick, you are on drugs.

traditionalguy said...

We will see if racism by blacks is as illegal as racism by whites? Or will we just have an empty hope for that change? Stay tuned.

TRO said...

"Racist?"

Yeah racist. And if you don't see that, you're not on drugs, you're just a liberal.

downtownlad said...

TRO is all for racism, um, I mean "affirmative action" when it comes to Republican Supreme Court picks.

I oppose affirmative action. But I think we need to get rid of the laws through our legislators. Instead, we get the Supreme Court unilaterally making laws to repeal affirmative action (against the wishes of our legislators) just because they had "empathy" for Ricci.

AJ Lynch said...

Can New Haven, like Chrysler, declare bankruptcy to avoid the financial damages from this decision which will cost them millions?

downtownlad said...

You're the racist TRO. There were thousands of people more qualified to be appointed to the Supreme Court that Clarence Thomas. But they were all discriminated against in favor of a token black appointee.

You support Affirmative action and that makes you a racist.

I oppose affirmative action in ALL cases.

downtownlad said...

Where in the Constitution does it say that New Haven can't revise their tests?

This is not "original intent". This is "judicial activism".

Harsh Pencil said...

No, I don't think Clarence Thomas was an affirmative action pick.

Here's why, and it comes straight from the people in the Bush the Elder administration who chose him:

The most important qualification for a Supreme Court justice is not academic achievement or brilliance (neither of which Thomas is lacking btw, but I digress). It's character or courage, both of which Thomas possesses in great quantity. To be a great Supreme Court justice, you have to have the character not to be seduced into ruling the way the chattering classes want you to rule and the courage to do this, knowing you will be endlessly slandered by them for doing so. In his time on the EEOC, Thomas showed that character and courage in spades (pardon the pun). He WAS the most qualified by that very relevant measure. And, by those measures, he has become a great Supreme Court justice.

downtownlad said...

Character at the EEOC? You mean like when he was sexually harassing Anita Hill?

Clarence Thomas was an affirmative action pick bud. And if you deny that - you really do live in an alternate universe.

Oxbay said...

The scary part is that 4 of the justices officially hate white people. With another hater about to join their ranks this is bad news for our country. I thought racism was bad.

Why do Democrats hate America? Why do they hate us?

Synova said...

Who was it who was telling me that *because* the city didn't do anything to prove that the tests were unfair before throwing them out, that it was all good?

NKVD said...

I know it is difficult for you, hdhouse, to understand and write in English, but thanks for trying.

A racist is someone who claims that one group of people is superior to another based solely on racial characteristics.

That is precisely what Sotomayor has repeated stated, so there you have it.

As for your drivel, it is good to see you posting here, again, but seriously, you still write as though you are retarded.

But thanks for your contribution - you never disappoint.

TRO said...

"I oppose affirmative action. But I think we need to get rid of the laws through our legislators. Instead, we get the Supreme Court unilaterally making laws to repeal affirmative action (against the wishes of our legislators) just because they had "empathy" for Ricci."

Since recent polls are showing more and more Americans are moving away from support for affirmative action, I suppose then that the Court's ruling today - which did not make a law, but only accurately interpreted it - more closely reflects what Americans want.

Crimso said...

"You mean like when he was sexually harassing Anita Hill?"

Yeah, and Obama's a Muslim.

Crimso said...

"You're the racist TRO. There were thousands of people more qualified to be appointed to the Supreme Court that Clarence Thomas. But they were all discriminated against in favor of a token black appointee."

Something remarkably similar happened in the 2008 election for POTUS.

Harsh Pencil said...

Downtownlad.

I'm not your bud.

Hoosier Daddy said...

hdhouse said Probably in the context of NKVD's limited mind, that he is a Latina hating racist who operates in a black white world, he being white and everyone else isn't.

Hey hdhouse, care to translate this into English for those of us who didn't take Idiot 101 in school?

Take your time. I know its tough to do the translation between Depends changes and your medication.

TRO said...

"You're the racist TRO. There were thousands of people more qualified to be appointed to the Supreme Court that Clarence Thomas. But they were all discriminated against in favor of a token black appointee."

If that same black appointee had been a liberal you would be singing a different tune. You know it. I know it. Everyone reading your nonsense knows it.

Synova said...

"We'll probably see more and more government entities dropping competitive exams for hiring and promotion. They may figure that the more subjective methods that the private sector uses are actually less likely to lead to trouble."

Possibly. And it seems like a good thing to me. There *ought* to be an element of personal judgment allowed in hiring and promotions. As someone here said in relation to school administrators explaining that they had to enforce stupid things according to rules and not common sense or personal judgment.. "sounds like a minimum wage job."

And it does.

downtownlad said...

Yes, there were thousands of people more qualified to be President than Obama. But none of them ran.

There were also hundreds of millions of people more qualified than George W. Bush to be President, but that's another matter . . .

And TRO - What law did this decision "accurately interpret". This decision overturned existing law. If you don't like affirmative action, then get the legislators to change it. Don't use the court to unilaterally overturn law that has nothing to do with the Constitution.

This is judicial activism of the worst kind.

downtownlad said...

There has never been one time in the history of the United States where a gay person benefited from gay affirmative action. But there have been tens of millions of cases were gay people were discriminated against because they were gay.

I think affirmative action ought to be banned forever. But it should be banned by our elected legislators, not legislators on the Supreme Court.

Synova said...

"I oppose affirmative action. But I think we need to get rid of the laws through our legislators. Instead, we get the Supreme Court unilaterally making laws to repeal affirmative action (against the wishes of our legislators) just because they had "empathy" for Ricci."

How do the opinions and ruling repeal affirmative action? All it said was that "once the process has been established" that the employer has to either go with it or else provide a "strong basis in evidence" that the process was flawed. The City in Ricci didn't bother to show how the testing process was flawed, it tried an end run to avoid having to do that.

Nothing stops the city from using a different plan for promotions that doesn't rely only on test scores.

Salamandyr said...

Glad to see this decision come down. From what I understand, the Court chose again to decide the case on narrow statutory grounds rather than make a sweeping Constitutional case.

Personally, I think this is a good thing. I prefer court cases to be decided as narrowly as possible.

Balfegor said...

He WAS the most qualified by that very relevant measure. And, by those measures, he has become a great Supreme Court justice.

He is my favourite justice today, and in my opinion, the best justice on the Court. But the idea that his race was not a major factor in getting him in -- even from a purely pragmatic standpoint (a Bork with Thomas's opinions wouldn't even have made it as far as Bork did) -- is just potty. The problem with the Supreme Court is that there's no established set of criteria for who is and who is not an appropriate nominee. Souter, for example, was not a particularly distinguished judge; nor was he a leading academic, or, really, notable in any way. But he got in. Earl Warren's legal career seems to have topped out at district attorney (although he was subsequently Governor of California), but he became Chief Justice. Prior to joining the Supreme Court, Sandra Day O'Connor was a state senator and an judge on the intermediate appeals court in Arizona (not the Arizona Supreme Court, it appears).

There's really no tradition of choosing the best and the brightest, or people at the "top" of the field, for the Supreme Court. To the extent that this has become normative, it's only been in the last 20 years, when both Clinton and Bush II were (reluctantly, in both cases) pretty much forced towards objective indicators of legal aptitude, just to get their picks through. We all remember Bush II's embarassing attempt to get Harriet Miers on the Court, but Clinton's protracted search for Blackmun's replacement (ultimately Ginsberg), is kind of amusing too -- he tried (1) Gov. Cuomo, (2) his wife, (3) Sen. Mitchell, (4) his Secretary of Education, (5) his Secretary of the Interior, (6) an appeals court judge, (7) another appeals court judge, (8) the first woman to serve on the Alabama state supreme court, (9) a blind DC lawyer (David Tatel) (to get a "first"), (10) an Hispanic district court judge (also, to get a diversity "first"), and finally Ginsburg herself. Clinton apparently wanted someone who wasn't really steeped in the legal culture, but -- as you can see from the progression there -- political realities eventually forced him to choose someone who was.

TRO said...

"If you don't like affirmative action, then get the legislators to change it. Don't use the court to unilaterally overturn law that has nothing to do with the Constitution."

First of all, we obviously disagree that this was judicial activism, but even if I were willing to agree that it was, a liberal complaining about judicial activism is right out of the Bizzaro Universe. Did you complain about Sotomayor obvious judicial activism when she decided this case with less time (and with less thought) than it took her to write her one paragraph summary order?

Balfegor said...

Sorry, that's Byron White's replacement, not Blackmun. I don't know why I wrote Blackmun.

PatCA said...

It's good that this decision came down at this time, when the president has nominated a justice who upheld principles that the SCOTUS knocked squarely down. The hearings will be interesting.

I would also like to ask the "community leader" why all the black guys did so poorly the test. It must say something about our schools, our families...what? Let's not be a nation of cowards on this subject, please.

Balfegor said...

"If you don't like affirmative action, then get the legislators to change it.

Well, you could say the same thing about all discrimination -- just get the legislature to fix it, don't bring equal protection claims.

downtownlad said...

Well if you want to call me a liberal TRO - I'll call you a Nazi.

At least that's closer to the truth.

Salamandyr said...

TRO, I'm not seeing how this was an activist decision.

It hinged on established definitional criteria, and really changed nothing, but prior Courts interpretations. That doesn't seem "activist" in the traditional sense that it is meant.

Jim said...

DTL -

"Why doesn't New Haven just change the exam to be the fastest people in a 100 yard dash. They'll never be a white person promoted again."

That's not racist or stereotypical at all.

Really.

TRO said...

"Well if you want to call me a liberal TRO - I'll call you a Nazi.

At least that's closer to the truth."

You're equating [the modern] "liberal" to "Nazi?"

Hey, you get no argument from me, pal.

downtownlad said...

Well Balfegor - I believe that that's exactly what the conservative justices have done in every single scenario when anyone claims discrimination (unless it's a straight white male) - they say that the legislators need to fix it.

And before you call bullshit - please show me a case that proves me wrong. Please show me a case where any conservative justice has ever sided with one of the following in a discrimination case, where they have invoked the equal protection clause:

1) Female
2) Minority
3) A gay person

TRO said...

"TRO, I'm not seeing how this was an activist decision."

I don't either, I was humoring dtl for the sake of the argument.

AllenS said...

downtownlad said...
"Why doesn't New Haven just change the exam to be the fastest people in a 100 yard dash. They'll never be a white person promoted again."

At The Scene of a Fire...

Firefighter: "Chief, what kind of fire is it, and what should we spray on it?"

Black Firechief: "I don't know. I'll run someplace really fast, and find out."

Information...

Class A - Ordinary combustibles
Class B - Flammable liquids/gases
Class C - Electrical equipment
Class D - Combustible metals
Class K - Cooking oil or fat

Jim said...

DTL -

"Well if you want to call me a liberal TRO - I'll call you a Nazi."

1) You're not a liberal. You're a Leftist.
2) See previous discussions re: Nazis if you think that Nazis were modern-day conservatives rather than authoritarian statists. Being spectacularly wrong in your choice of epithets isn't exactly an argument in your favor.

downtownlad said...

No Jim - it is not racist. When is the last time a white person has represented the United States in a 100 meter race for the Olympics?

I'm not politically correct, so I have no problem talking about this stuff. I don't ever self-censor myself, especially when it's truthful.

Black people in the United States, on average, are faster than white people when it comes to sprinting.

garage mahal said...

Glad to see we have 5 emphatic judges that can disregard binding precedent and rule from the bench.

Salamandyr said...

I wonder if the New Haven test would have been certified if the top scorers had all been some ethnic composition than white?

Chase said...

It seems that New Haven had the right to change the game - and I say this as a conservative.

New Haven's problem is the stupidity with which they sold ther reasoning - and if they can't do a better job explaining it, then shame on them - they deserved this decision.

Any 5th grader can see that when the results of the test came back, they had several options that they could have taken - but didn't:

They could have announced that they were uncertain as to why the results proved so disparate, and then proceeded to do a highly publicized process of analysis, all while

divising another form of promotion that would be seen as fitting to a fire department (it doesn't take a brain surgeon).

But thanks be to those invested in the tribal race game - read: liberals(as downtownlad illustrates so well here today) - everyone is afraid of being sued or disgraced publicly.

Bottom line: New Haven could have, with a little common sense - got in front of this thing and spared all of the Fire Dept families of all the races involved a lot of needless pain and frustration.

By the way, downtownlad - you are often brilliant here, especially on economics (your major at Oxford(?)). But why are you so often intolerant of any discussion on race and sexual orientation?

downtownlad said...

Jim assumes I'm a leftist solely because I'm gay.

That also makes him a bigot.

And Allen - if I had to choose a white firefighter or a black firefighter to rescue me, I'd choose the black firefighter every time - because they are likely to be stronger and faster.

Jim said...

AllenS -

If you go arguing with DTL on facts or reason you're only going to wind up frustrated. He's only capable of arguing emotionally, and when faced with facts he'd rather twist himself into logic pretzels than admit he was wrong.

To him, blacks need reverse discrimination because they're only good at athletics. See his previous post for proof of his completely non-racist reasoning.

chefmojo said...

Well, I know this much at least; Clarence Thomas was far less of an affirmative action appointment than Thurgood Marshall.

TRO said...

"I wonder if the New Haven test would have been certified if the top scorers had all been some ethnic composition than white?"

My understanding was that at least one was Hispanic and joined in the suit.

TRO said...

"Jim assumes I'm a leftist solely because I'm gay."

You're gay?

Jim said...

DTL -

"Jim assumes I'm a leftist solely because I'm gay.

That also makes him a bigot. "

Haven't we already had multiple discussions about you calling me a bigot? You know, those discussions where you were too cowardly to admit that you were wrong?

I don't assume you're a Leftist because you're gay. I assume you're a Leftist because you're a Leftist.

downtownlad said...

Who says I'm intolerant Chase? I oppose affirmative action.

I like the results of this decision, but I don't like the law. I don't like judicial activism and I believe in original intent.

Do you have a problem with that?

downtownlad said...

So Jim - tell me what my leftist positions are. Name three.

Besides the fact that I believe in equality for gay people. Yes, we know that leftists believe equality and conservatives believe in discrimination.

But name some others of my "leftist" positions.

Jim said...

DTL -

"And Allen - if I had to choose a white firefighter or a black firefighter to rescue me, I'd choose the black firefighter every time - because they are likely to be stronger and faster."

WOW! I mean...WOW! Could you compound your racism any further? Do all black people like fried chicken and watermelon too?

Jason said...

Look closer.

Not only did the majority bitch-slap Sotomayor. Even Ginsburg, writing the dissenting opinion, didn't think much of the flippant way that Sotomayor handled the case - via summary judgement, with only a paragraph devoted to the merits.

I guess that's what you get when you rely on "the richness of your experiences" as a latina woman, rather then, say, a sober, rational, careful weighing of the facts, the law and precedent.

Dust Bunny Queen said...

"Why doesn't New Haven just change the exam to be the fastest people in a 100 yard dash. They'll never be a white person promoted again."

Not only is this a racist statement it is ridiculous. The test that was given pertained to the job opening and as such the people who did the best on the test deserved the promotion.

The question as to why more people of any ethnic group scored higher or lower is a completely different issue and should be honestly examined.

I'm very pleased with this decision of the Supreme Court.

downtownlad said...

I don't know why its racist to point out that American blacks are better athletes than American whites, on average.

I also think that blacks are better jazz musicians. I guess that's racist too.

Jim said...

DTL -

1) Your need to call everyone who disagrees with you a bigot. That's classic Leftist argumentation.

2) Your belief that enforcing the law as it is written constitutes judicial activism, while simultaneously believing that judges creating new laws or rights isn't. Classic Lefist reverse logic. One clearly isn't. The other clearly is. That you believe the opposite puts you squarely in the Leftist camp.

3) Your claim to believe in equality while employing some of the worst racist stereotypes possible. Again, perfect Leftist condescension toward minorities.

Any other questions?

[Notice that your sexuality wasn't one of three. I know plenty of gay conservatives, so even assuming that your sexuality was an issue is your issue not mine. Don't project your prejudices on me. It's quite evident that you have more than enough to go around for everyone.]

Salamandyr said...

"My understanding was that at least one was Hispanic and joined in the suit."

I knew that, but what if all the top scorers were black or hispanic? If not a single white scored in the top 20?

Would it be fair or unfair to certify such a result? And what do we think New Haven would have done in such a situation?

downtownlad said...

And 82% of the NBA is black, and I'm supposed to think that is just a coincidence?

65% of the NFL, a game that certainly involves speed and strength, is black.

How is racist to point this out?

I also think that white firefighters in New Haven are better at taking written tests than black firefighters.

TRO said...

"And Allen - if I had to choose a white firefighter or a black firefighter to rescue me, I'd choose the black firefighter every time - because they are likely to be stronger and faster."

Aside from the racism in this statement one should note that it doesn't have a thing to do with this case. These guys and gals were already firefighters. This wasn't a physical fitness test, this was a test for promotion into higher management. The fact that White Men Can't Jump had nothing to do with it.

Maguro said...

And Allen - if I had to choose a white firefighter or a black firefighter to rescue me, I'd choose the black firefighter every time - because they are likely to be stronger and faster.

Good lord, you're stupid. We're talking about a promotion test, so it's more about technical knowledge, leadership and decision-making than raw physical strength. Raw strength may be great for an entry-level fireman, but its hardly the most important quality for a fire chief.

A fire captain at the scene of an incident has to make a life-or-death decisions and won't have time to look up the correct answer in a manual. He has to know the pumping capacity of of his fire trucks and where to properly position them for maximum effect.

Not knowing this stuff can cost someone's life, that's why they test for it.

Synova said...

What Chase said is what I understand from reading what Althouse quoted of the opinion.

The City could have done a number of things... the reason they're in trouble is that they didn't bother. They decided, apparently on bad legal advice and fear of a lawsuit, that deciding not to certify the test and test results got them entirely off the hook. That somehow if the test wasn't certified (or whatever) that there was a legal fiction in place that no one knew the results and no one was making decisions based wholly on race.

downtownlad said...

You're a liar Jim.

You don't have ANY gay friends, so you are lying when you say that you know "plenty" of gay conservatives.

No gay person, unless they were self-loathing, would be friends with someone like you - who thinks that gay people are pieces of shit that don't deserve any rights.

Jim said...

DTL -

"American blacks are better athletes than American whites, on average."

That's patently false in the first case. You're looking at professional football and basketball and extrapolating into a blanket racist statement. How about hockey? Or soccer? Or swimming? Or tennis? Or skiing? Or any other number of sports where minority participation is historically low?

Also, you're looking at an extreme end of the spectrum by only examing professional athletes. Your statement was "on average." Where is your proof that the average black athlete is superior to the white? There are millions of semi-pro and amateur leagues in a vast array of sports, and you have no proof other than your own prejudices to say that the average skill level - as a whole - is higher among one race over another.

Here's a little known fact for you: whichever race is experiencing the greatest rates of poverty tend to produce the largest number of professional athletes. Because it represents a sort of "Hail Mary" to escape poverty. It has nothing to do with intrinsic racially-based characteristics and everything to do with which group of people is most likely to make the choice to devote the time and energy required to become a highly-trained professional athlete.

You really should stop talking now.

downtownlad said...

I have no problem with promoting only white firefighters, and never promoting black firefighters.

I just have a problem with this being mandated by the Supreme Court, when the law says otherwise.

Jim said...

DTL -

"No gay person, unless they were self-loathing, would be friends with someone like you - who thinks that gay people are pieces of shit that don't deserve any rights."

Who's the liar? See my previous discussions regarding my support for gay rights. The same discussions where you said you would apologize for calling me a bigot when I proved you wrong?

You still haven't apologized. You're still a liar, and now you insist on reminding people that you're a coward and a racist to boot.

downtownlad said...

Blacks, due to their lower socio-economic status, do are not likely to play hockey, or take swimiming lessons, or play tennis. But when they do, they actually do quite well, i.e. the Williams sisters.

Not sure what you're talking aout when it comes to soccor. There are plenty of blacks, and Hispanics, who excel at soccer.

As a gay man, this is quite obvious. Black men have fantastic bodies (on average). Again, I'm stressing the "on average". Just because an ethnic group might have a better propensity and some sport or academic pursuit, does not mean that all members of an ethnic group share that trait.

Jews (of which I am one) do very strong academically. Again, on average. And, again on average, Jews can't hunt.

downtownlad said...

You don't support gay rights. You have never in your life voted for a candidate who supported gay rights. So you can talk all you want - it doesn't make it true.

Leland said...

Funny how some people are flipping out about SCOTUS over turning a lower court's ruling. I wonder if it is because of the use of the "Equal Protection Clause", as was the case in 2000.

It is interesting to see who supports laws be written such that some benefit but not others.

AllenS said...

At the Scene of a Fire...

Fireman: "Looks like a fire caused by frying chicken. What should we do?"

Fire Chief: "Wait right here, I'll go get some black firemen."

I'm kinda gettin a kick out of this.

TRO said...

"You don't support gay rights. You have never in your life voted for a candidate who supported gay rights. So you can talk all you want - it doesn't make it true."

Knowing that this statement is likely to spin DTL into the ceiling, if he voted for Bush-Cheney he voted for someone who supports gay rights. Cheney that is, more so than our current president who is doing nothing for gay rights.

Jim said...

DTL -

"You don't support gay rights. You have never in your life voted for a candidate who supported gay rights. So you can talk all you want - it doesn't make it true."

This is my last response to you on your bigotry and hatred. You are entitled to tell people what you believe, but you are not entitled to tell people - in direct contravention of the facts - that I believe something I do not. It's a defamation, and a lie.

You're an offensive, racist, cowardly bigot. Your repeated racism is an offense to every thinking person. Your blind hatred of everyone not like you is unreasoning and vile.

Begone.

TRO said...

But to move the subject along a bit. Does anyone think this ruling - where all nine justices basically said Sotomayor was wrong (and not just wrong but seriously wrong) - affects her chances?

AllenS said...

At the Scene of a Fire...

Fireman: "Looks like downtownlad is on fire. What should we do?"

Fire Chief AllenS: "Wait right here, I'll go get some gasoline."

I'll be here all week. Don't forget to tip the waitresses.

Dust Bunny Queen said...

I also think that blacks are better jazz musicians. I guess that's racist too.

I think that gay guys make much better interior decorators. Gay men are so much more into women's clothing too.

Does that make me a homophobe?

Actually I don't think those things but they are just as stupid to think as the racist thoughts DTL is expressing.


When it comes to fire fighters saving my life I don't care about color, creed, sex or anything else. I just want the best qualified person to do the job. If it turns out that all the best qualified are midget Eskimos, great. I don't care.

downtownlad said...

Of course everything I said is completely true.

Jim has never voted for a candidate who supports gay rights, which is why he can't name one. Cheney doesn't count, because he opposed gay rights at the time (just read the Republican platform).

And of course, he knows that he has no gay friends. (But his wife has gay co-workers!!!).

And Jim has a health care plan at his company that discriminates against those employees who have gay partners, who unfairly have to pay tax on those benefits, when straight married workers do not.

So this drives Jim up the wall.

TRO said...

"If it turns out that all the best qualified are midget Eskimos, great. I don't care."

Wouldn't it be cool to be rescued by a midget Eskimo firefighter? The story possibilities are endless.

downtownlad said...

Actually gay men do make better interior decorators than straight men. They don't necessarily make better interior decorators than straight women. I hired a straight woman as my interior decorator. And she was amazing.

The same goes with hair stylists. And florists.

Again, not sure why it is homophobic to point out something that is so obviously true.

Hoosier Daddy said...

I think that gay guys make much better interior decorators. Gay men are so much more into women's clothing too.

Don't forget hairdressers for the trifecta.

downtownlad said...

I also think that men make better firefighters than women.

Ooops - I guess Ann's politically correct commentariat suddenly thinks I'm sexist.

Oh well. I don't care. I speak the truth, but everyone else is too paranoid to admit it.

Randy said...

I'm interested in reading Althouse's opinion of the decision.

downtownlad said...

Oh an those stereotypes about blacks having bigger dicks and Asians having smaller dicks.

100% true.

Dust Bunny Queen said...

And Jim has a health care plan at his company that discriminates against those employees who have gay partners, who unfairly have to pay tax on those benefits, when straight married workers do not.

That is a FEDERAL tax issue and nothing to do with Jim or his employer's health plan. If you don't like it.....take it up with Obama instead of pissing all over people who have no ability to make any changes in federal tax laws.

God you are stupid.

downtownlad said...

DBQ and Jim voted for candidates who put those discriminatory laws into place.

It is fair to call both of you bigots because of that.

downtownlad said...

Both Jim and DBQ supported the Defense of Marriage Act when it was passed.

Hoosier Daddy said...

I think DTL is a better asshole than anyone.

Dust Bunny Queen said...
This comment has been removed by the author.
American Liberal Elite said...

"Ah, the gods of Supreme Court confirmation are smiling on Sonia Sotomayor. Now, I will place my bet that the white firefighters will lose Ricci v. DeStefano."

Ann Althouse June 2, 2009

downtownlad said...

I know who you voted for because I'm very smart and insightful.

Happy to be corrected if I'm wrong.

Now prove me wrong DBQ. Who did you vote for that voted against DOMA. Really curious.

Dust Bunny Queen said...

DBQ and Jim voted for candidates who put those discriminatory laws into place.

It is fair to call both of you bigots because of that.


How do you know who I voted for? How dare you say I voted for Clinton /wink ;D

I AM a bigot against stupid people and DTL qualifies hands down.

downtownlad said...

I'm certainly a faster typer than anyone here.

And I have a higher IQ.

And maybe I am a bigger asshole - but I never pretended to be nice.

bagoh20 said...

"however well intentioned or benevolent it might have seemed"

The problem is right there. That people today can think discrimination based on shared skin color with some historic bad guys is somehow fair or well intentioned.

To believe that the day those firemen were born they deserved to be punished the rest of there lives for some dead peoples' sins.

Jim said...

TRO -

"Does anyone think this ruling - where all nine justices basically said Sotomayor was wrong (and not just wrong but seriously wrong) - affects her chances?"

I think the issue is not just that she was wrong, but as others have pointed out, that she didn't even have the intellectual heft to take the case on.

She decided that the case was without merit and dismissed it summarily without any reasoning behind it. That's a fatal flaw in a Supreme Court justice.

It's forgivable to be wrong. But not so much to just decide you're right and think you're above having to explain yourself.

If Republicans are smart, that's the tack they'll take in hearings on the subject. People are much more likely to be offended at the smug arrogance implied than where she came down on a potentially divisive issue.

downtownlad said...

I'm going to bed now.

I will end with one more racist statement.

Brazilian men are the hottest men on earth.

http://3.bp.blogspot.com/_bYEE-K0aHQc/R2LZkO2-2OI/AAAAAAAAJA8/14TlrG2GCzo/s320/Rafael%2BVerga1.jpg

Good night.

Laura(southernxyl) said...

To address the suggestion that the white people who took this test were better test-takers than the black people:

Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools 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 eight to 13 hours a day, and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion.


I know we've all seen this, but here.

Do you remember seeing any such story about the black firefighters who did not pass the exam? How much time, effort, and money they put into preparation? I don't. Maybe it just wasn't reported. Or maybe they didn't worry too much about test prep, but rather relied on the city of New Haven to do the right thing, so to speak; and they were not disappointed. I can't say which it was. But to say the the white people were just better test-takers is kind of stupid, IMO.

Not sure I understand the "judicial activism" charge. We have the courts to make sure the law is applied, right? What are people supposed to do when they think the law hasn't been applied and they've gotten the shaft? What are the courts supposed to do when they are presented with such a case?

As to the question about what would have happened if no white person had passed that test - probably the promotions would have happened and life would have gone on. There is an entire school of thought that says that you put forth relevant, bona-fide requirements, make sure everybody is aware of them up front, and then let the chips fall where they may. I think such a thing is totally alien to the thought processes of some folks, but it makes sense to me.

Aaron said...

Downtownlad

> I'll tell you what this is. It's judicial activism. Pure and simple.

Yer joking, right?

By the way, how do you know that Thomas wasn’t picked for his character?

> Where in the Constitution does it say that New Haven can't revise their tests?

They can do anything they want, so long as they don’t commit racial discrimination. Where does it say that? 14th Amendment, equal protection clause. Duh. A facially neutral act becomes illegal when done for racial reasons.

> You mean like when he was sexually harassing Anita Hill?

Except Hill never proved it to anyone’s satisfaction but Ted Kennedy’s. But then, maybe kennedy is an expert on the subject.

> This decision overturned existing law.

Sorry, what law or decision was overturned by this one?

> Please show me a case where any conservative justice has ever sided with one of the following in a discrimination case, where they have invoked the equal protection clause: 1) Female, 2) Minority, 3) A gay person

The VMI case, off the top of my head.

http://www.law.cornell.edu/supct/html/94-1941.ZS.html

By the way, are you trying to win the award both for the least amount of thought to the most posts, and the most racist and sexist posts of the day?

Balf

> But you can easily imagine what's going to happen next time -- the city will shop around for a detailed legal opinion saying they will be liable for "adverse impact," (essentially a brief arguing for disparate impact liability) and claim that the legal opinion establishes the requisite "strong basis in evidence."

Well, except they have to have the facts on their side. Its not enough to have a cleverly written brief.

TRO

Good catch on that sympathy quote. That seems like a pretty direct slap at Soto, too.

> And if you don't see that, you're not on drugs, you're just a liberal.

The two are not mutually exclusive, you know.

Hdhouse

> She is as much a racist as you aren't a jerk.

Maybe he put it too baldly, but the district court opinion was an embarrassment, because it pretended that the mere fact that no one was promoted means that there was no discrimination under the 14th A. While the Supreme Court didn’t reach the 14th A, clearly this decision slapped the District Court back and the 2nd circuit panel in turn for endorsing that terrible decision.

Put that together with the wise latina comment, and you start to think this woman really has a race issue.

Bluntly, she has no business being on the Supreme Court, if only because of the reasonable question to her impartiality.

Synova

> Who was it who was telling me that *because* the city didn't do anything to prove that the tests were unfair before throwing them out, that it was all good?

I believe it was FLS.

William said...

The City has a vested interest in seeing that all ranks of firefighters are qualified to perform the duties of their station. The fireman does not have to be the best qualified, but he has to be qualified. The city also has an interest in seeing that all races and classes perceive the fire department as fair in its hiring practices and effective in the performance of its duties. There must be a way to balance this equation in such a way that large chunks of the population are not entirely pissed off. Perhaps the city can give extra points for residence in a housing project or whatever, but not enough extra points that an unqualified applicant gets the job.....However, I agree with the Supreme Court. The rules of the contest, i.e. the rule of law, should determine the winner.....Liberals should not argue against Justice Thomas as an affirmative action candidate. Thomas has done a great deal more to undermine negative stereotypes among conservatives than any other black I can think of. Shouldn't that be applauded by liberals?

bagoh20 said...

It's impossible to support either racism or reverse racism without a belief in the natural intrinsic inferiority of a group of people - the same group in both cases.

Reverse racism is the final bastion of the true racist.

elHombre said...

Ginsburg: But they [the white and hispanic firefighters] had no vested right to promotion. Nor have other persons received promotions in preference to them.

Give us a break, Ruth. Take race out of it. The city says, "We need a captain. Finish at the top on the test and you will be promoted to captain."

You finish at the top, then the city says, "Oops. That's not the way we thought it was going to turn out. No promotion for you, but we still need a captain and there'll be another test later."

As the top finisher you had "no vested [actionable] right to the promotion"? And nobody's going to receive the promotion "in preference" to you?

Oh please.

Synova said...

"Knowing that this statement is likely to spin DTL into the ceiling, if he voted for Bush-Cheney he voted for someone who supports gay rights. Cheney that is, more so than our current president who is doing nothing for gay rights."

And didn't Palin veto a bill that had passed the Alaskan legislature to deny benefits to the gay partners of state employees?

So Palin has done more that is *real* to support gay rights than our current President has done. She could easily have passed it off as the will of the majority, but she didn't.

Henry Buck said...

The Second Circuit panel's attempt to bury this case has blown up in Sotomayor's face.

MadisonMan said...

She decided that the case was without merit and dismissed it summarily without any reasoning behind it. That's a fatal flaw in a Supreme Court justice.

Was she not part of a panel that made that decision? That's my recollection. And that the decision simply said that the law as written was to be followed.

Advice to all: If you are asking a question and want a particular answer, craft the question so no other answer is possibly correct.

Jeremy said...

Henry Buck said..."The Second Circuit panel's attempt to bury this case has blown up in Sotomayor's face."

Yeah, this is the BIG ONE!!

She's toast.

She'll never be confirmed now.

It's ALL OVER now.

Forget it.

We can't have judges who have been overturned even considered for the court.

No Way.

Never.

DUH.

Big Mike said...

My first thought was that Ginsberg was being a jerk, but then I thought a bit more deeply about what she wrote. Clearly the problem is the pernicious "disparate impact" suit, which permits members of "protected" groups from having to prove intentional discrimination. What Ginsberg is saying is that the mere possibility of such a lawsuit forced the City of New Haven to either cancel the exam, or go to court to try to prove a negative, i.e., that the tests were perfectly fair to all of the test-takers.

Does she not see how wrong that is, from an ethical perspective?

Jim said...

MM -

"Was she not part of a panel that made that decision? That's my recollection."

That she wasn't alone in her arrogance doesn't change the fact. It just means that she's not the only cancer in the court system.

"And that the decision simply said that the law as written was to be followed."

Except as today's decision by the Supremes shows, she was wrong. That's not what the law said. It depended on her interpretation of what it said: not a plain reading of the law. A quick reading of the majority decision shows that they simply connected A to B to get to C: a logical reading of the law.

On the other hand, the minority decision depends on a great deal of "reading between the lines" and supposition to get to its desired outcome.

Which is more like following the law as written?

And, in either case, can a single paragraph justify either position? Of course not.

As others have pointed out elsewhere, even the dissenters didn't make the case that it was so clear cut as to be easily dismissed by a single paragraph.

In short, every single one of the nine justices found some fault with Sotomayor's actions in this case. Even those who agreed with her ends criticized her means.

Aaron said...

madison

Soto was one of the two judges on the 2nd circuit panel upholding the district court, praising its reasoning. The Supremes were pretty subtle about it, but they did slap the District Court for its silly ruling, and by extension, Soto.

Just to clear the record.

Cedarford said...

Justice Scalia has a concurring opinion to note that it "merely postpones the evil day" when the Court will have to decide whether the disparate-impact provisions of Title VII violate the Equal Protection Clause:.


Yes, that is cutting to the chase. The true problem is conflicting laws of Congress - which Dems count on keeping as status quo and Republicans from Reagan on are dedicated to perpetuating to keep both of the laws alive as a Republican social wedge issue.

Neither Party wants the laws on Equal Protection vs. Disparate impact reconciled.

In my view, the Republican reluctance to take a shot at fixing the dilemma when they had both chambers of Congress was a huge tactical mistake.

The Democrats play it more adroitly. Disparate impact prevails when less qualified minorities want jobs or school admissions, and activist judges can be counted on to insist that Equal Protection applies to gender cases to protect women from physical disadvanges in the military, prison guard jobs, etc..And to protect "more qualified" democrat constituent groups from disparate impact challenges when it comes to blacks dominating the NBA, or Jews having huge disparities with other whites in percentages in various professions like banking and law, and in prestigious universities.

================
Chase - divising another form of promotion that would be seen as fitting to a fire department (it doesn't take a brain surgeon).

But thanks be to those invested in the tribal race game - read: liberals(as downtownlad illustrates so well here today) - everyone is afraid of being sued or disgraced publicly.

Bottom line: New Haven could have, with a little common sense - got in front of this thing and spared all of the Fire Dept families of all the races involved a lot of needless pain and frustration.
.

No, the problem as Maguro said, is that being a fire officer is a complicated skill set, and requires someone that has a vast amount of knowledge (candidates study for a year, 10s of hours a week for it after years of on the job experience with the basics.

You have the lives of the general public and the lives of firecrew in the balance if your skills are not the best possible.
You don't want "dumbed down" tests to ensure "everyone passes!!" so you can pick from just about everyone that shuffles in to take a test..you want the very best.
Same with other critical positions in society like a paramedic EMT, a Federally licensed nuclear reactor operator, a F-16 pilot, or tunnel construction safety supervisor.

Again, people with no knowledge of firefighting confuse the ability to hump 80 pounds up 4 flights of stairs with the ability to manage a fire scene with several, often dozens of - sometimes hundreds of lives in various degree of risk. All resting in large part on a fire scene officer's individual knowledge and judgement of thousands of factors that could possibly be in play at any given fire. All resting as well on how well the selected officers then - as managers - hired, trained, and motivate other crew. And like the EMT, in many cases with no backup and no time to open a book and look up the answer to a real life - real time decision that must be made.

As a volunteer firefighter for 9 years, after being initially an officer trained in base firefighting as part of duty..I have looked at the Cali version of the Lieutenant written exam, and seen a sample video of a rapid-fire oral board exam. They are very challenging. And involve a whole new set of knowledge and skills that engine drivers and hose humpers do not get more than 25-35% of through experience on the job in lower positions.

TRO said...

"Again, people with no knowledge of firefighting confuse the ability to hump 80 pounds up 4 flights of stairs with the ability to manage a fire scene with several, often dozens of - sometimes hundreds of lives in various degree of risk. All resting in large part on a fire scene officer's individual knowledge and judgement of thousands of factors that could possibly be in play at any given fire. All resting as well on how well the selected officers then - as managers - hired, trained, and motivate other crew. And like the EMT, in many cases with no backup and no time to open a book and look up the answer to a real life - real time decision that must be made."

You mean you want competency as a criteria for a job? Are you MAD, man? This is the United States of America.

traditionalguy said...

As I understand the situation, The apellate court set up todays decision by following the law as written and adding an impassioned dissent to tempt SCOTUS to accept it and reverse the catch-22 of Afirmative Action spelling out a results only test when reviewing oriented hiring practices Until tody the apellate court was stuck with the "We will be sued and lose money" rational for not defending righteous white employees from being abused to buy votes in Majority Black jurisdictions. Am I right? Tar and feathering Sotomayor is not called for; simply ask her whether she gladly accepts today's decision that cuts the gordian knot of prior law that required a results test for hiring practices of a mandatory number of people who are not white men.

Randy said...

Has anyone else noticed that DTL is obsessed with his supposed IQ score? Has he ever actually said what that supposed score is/was?

MadisonMan said...

It just means that she's not the only cancer in the court system.

If there is a beef to be had with the Judicial Branch, Congress members can grandstand all they want during the confirmation hearings -- people all through Congress have done this. But MO is that the American Public sees that for what it is: throwing a bone to a particular voting bloc. If you actually want to *change* things, you can either introduce legislation, or change the Constitution.

I rather doubt the Republican Party is going to pillory Justice Sotomayor on the basis of the Republican Party's (cough) principles -- whatever they are this week.

Aaron said...

traditional

The law never said what the district court claimed the law said. Period.

Pogo said...

@TRO: "Does anyone think this ruling - where all nine justices basically said Sotomayor was wrong (and not just wrong but seriously wrong) - affects her chances?"


Given the at the current administration's efforts on the economy are similarly wrong (and not just wrong but seriously wrong), it makes her confirmation a certainty.

hdhouse said...

Hoosier Daddy said...
"Hey hdhouse, care to translate this into English for those of us who didn't take Idiot 101 in school?"

I was stone cold certain that you had not only taken Idiot 101 but passed it successfully on any number of times....as you continue to demontrate each time you post up.

garage mahal said...

"Legislating from the bench, Sotomayor was smacked down earlier today by judicial activists for following law and precedent".

Hoosier Daddy said...

I was stone cold certain that you had not only taken Idiot 101 but passed it successfully on any number of times....as you continue to demontrate each time you post up.

English wasn't your first language was it?

Cedarford said...

William said...
The City has a vested interest in seeing that all ranks of firefighters are qualified to perform the duties of their station. The fireman does not have to be the best qualified, but he has to be qualified. The city also has an interest in seeing that all races and classes perceive the fire department as fair in its hiring practices and effective in the performance of its duties.
.


The problem William, is if you dumb down selection criteria so as to vastly widen the "qualified pool" so you can achieve "fairness" - you remove all incentive to excel.

1. If a 70 is passing grade to be considered "equally qualified" for a school or job promotion - what to you call a person who worked harder to achieve a 95? A fool.

2. If a 70 is passing and you have a very gifted candidate who knows he can get a 70 with half the effort of others - or work just as hard to get a 97 score which he knows will gain him no edge over a person with a 72 score. What is more likely? Hard effort to be the best possible person entering the school or job, or half effort since performance past a certain minimum is completely devalued?

3. Do you honestly think a test to enter firefighter elites or get on a NBA team can be devised that will make ALL "different advocates for their people" happy? Proclaim the test "fair"???

If Harvard was tasked with only selecting students to please all identity politics groups, they would say anyone with 1100 SATs and a "B" average was "qualified" - then select based on pleasing the demographics and adding "bonus points" for biography, kin color, etc.
That would be bad - but a societal move enmass to mediocrity - "just about everyone is "qualified enough" to be selected to a job or school in any pool of candidates showing minimum effort and skill, would be absolutely cancerous to America. To excellence, to our effort to regain our ability to compete with better educated students and better skilled workers overseas.

Jim said...

garage -

Actually that's not what the dissenters said. Even the dissenters said Sotomayor decided the case wrongly. In a footnote, Ginsburg says that Sotomayor should have remanded the case back to the district court. Her one paragraph dismissal was found to be wrong by 100% of the court: even those who ultimately agreed with the end result of that dismissal.

No matter which you turn, you can't escape the fact that this was a pretty sharp slap across the face from the entire court for Sotomayor: not just those who disagreed with her.

Kirk Parker said...

dtl,

"And Allen - if I had to choose a white firefighter or a black firefighter to rescue me, I'd choose the black firefighter every time - because they are likely to be stronger and faster."

Dude, the only way that statement is not an indicator of geniune insanity is if you really meant, "if I had to choose [between] a white firefighter or a black firefighter without knowing anything else about them...".

Well, guess what--the test that New Haven implemented and then discarded was precisely all about knowing more about the candidates than just their racial background and appearance.

Aaron said...

Btw, for all the people claiming that the law or precedent were overturned, unless you can cite to a specific law or precedent, don't bother. we all know fluff when we see it.

MnMark said...

downtownlad wrote:I think affirmative action ought to be banned forever. But it should be banned by our elected legislators, not legislators on the Supreme Court.

I don't think downtownlad understands the role of the Supreme Court. When the legislatures pass unconstitutional laws, the S.C. declares them unconstitutional. That is not "judicial activism"; it is the proper role of the Court. "Judicial activism" is finding new rights - like abortion - in the Constitution that are not written there. Judicial activism is using the court's power to set policy (ala Sotomayer) rather than decide constitutionality. That's not what was done here. Here the court simply ruled that New Haven's action was unconstitutional. They did not discover a new right, they simply protected the well-established constitutional rights of the defendants. That's not activism, that's the proper role of the Court.

In order to be clever, you are trying to change the definition of "judicial activism" so that anytime the court overturns a law, they are being "activists". But as I said, the proper role of the Court is overturn laws - if they are unconsitutional. Since the primary responsibility of the Court is overturning unconstitutional laws, by your definition every single thing the Court does is "judicial activism" and thus the term has no meaning as you use it.

garage mahal said...

Btw, for all the people claiming that the law or precedent were overturned, unless you can cite to a specific law or precedent, don't bother. we all know fluff when we see it..

Here's your fluff. And because Bushey has never been overruled, it is considered a binding precedent in the Second Circuit, and Sotomayor was required to follow it when her panel was called upon to decide Ricci. You're up.

Shanna said...

"Does anyone think this ruling - where all nine justices basically said Sotomayor was wrong (and not just wrong but seriously wrong) - affects her chances?"

I don’t know that it makes a bit of difference, but it is interesting that the current justices basically got to weigh in on a nominee, without wading into politics.

holdfast said...

Blogger downtownlad said...

"Why doesn't New Haven just change the exam to be the fastest people in a 100 yard dash. They'll never be a white person promoted again."

-Ooh, Ooh can I answer that one?
Easy, because it would discriminate against women. A lot of these written exams were instituted because female candidates are so massively outclassed by males on the more traditional physical tests (though to be fair, this was an officer's exam, so a bit more book-lernin' seems appropriate).

mariner said...

William:

There must be a way to balance this equation in such a way that large chunks of the population are not entirely pissed off.


If the black community were not blatantly racist you'd be right. Unfortunately that isn't the case.

Less-qualified black people demand special treatment based on their race, and usually they get it.

Jim said...

garage -

Let's go through your fluff point by point:

The case you cited is wholly different from the case at hand because the state didn't deny promotions to nonminority candidates as New Haven did in this case. Therefore, they couldn't prove adverse impact based on the state's action. So, your "proof" falls down in the first instance.

We don't even have to get to the other instances. Essentially in Bushey, they were arguing that minority candidates shouldn't be given promotions also. In this case, if New Haven had decided to give promotions to the ones who passed as well as using some other criteria to also promote some number of minority candidates, it may well be that they could have prevailed based on Bushey.

But they chose not to take that path. Instead, they denied a promotion to someone who had met the previously defined criteria solely on the basis of their race - which was not at all the case in Bushey.

Which makes your proof "fluff."

Aaron said...

Garage

Bushey was written before the 1991 amendments which specifically said that no company would be required to establish quotas. Bushey, defacto required quotas. Therefore Congress overturned Bushey and the 2nd circuit was pretending it was not the case. To assert Bushey in the face of clear statutory law to the contrary is the activism.

mariner said...

Jim:

No matter which you turn, you can't escape the fact that this was a pretty sharp slap across the face from the entire court for Sotomayor: not just those who disagreed with her.


Perhaps the Justices through their opinions weighed in on Sotomayor's nomination: "No thanks".

mariner said...

Shanna,

Perhaps we're not alone in our thought.

Jim said...

mariner -

"Perhaps the Justices through their opinions weighed in on Sotomayor's nomination: "No thanks"."

In not so many words, they pretty much did. Not one justice found her reasoning in the instant case to be sound: including Souter - the consistently liberal judge that she would replace.

My guess is that they're looking for someone who actually is able to make a decision and defend it, rather than someone who just makes a decision and basically just says "Because I said so. That's why."

SarahWeddington said...

Lots of people are saying the Court found something unconstitutional. They didn't. They found that it violated Title VII of the Civil Rights Acts. They never reached the equal prtection issue. So this case has nothing to do with the Constitution. If you read Title VII it says you can't discriminate based on race. New Haven clearly did. Ergo, the decision.

As for DTL and his saying that legislators should decide. They already decided 45 years ago when they said there should be no discrimination based on race. That's pretty clear. New Haven discriminated based on race. The decision was already made by the legislators and the city violated it. The SC had to enforce the decision. that's what they did. They didn't find anything unconstitutional. They didn't overturn any legislative decision. They simply stated that New Haven violated the Civil Rights Act.

But, if you're so interested in legislators making decisions then surely you should oppose the Roe v Wade and Casey decisions, not to mention many others. In fact, I guarantee you every conservative out there would gladly accept a deal that switched the outcome in this case for a reversal of Casey. Judging by your posts you would to.

I'd have no problem with letting voters decide both aff action and abortion. But in this case the city policy was a clear violation of the text of the Civil Rights Act. That's impossible to ignore. The city basically conceded that Ricci wasn't promoted because he was white. You can't get a much more clear example than that.

Roger J. said...
This comment has been removed by the author.
Roger J. said...

Are there any lawyers on this thread that are willing to talk about the legal implications of the ruling? Were I a public sector manager, I would be interesting in knowing that. Do I have to have hiring exams or questionnaires pre screened? Or do I simply look at the results and see if they represent a statistical model of the population from whom they are drawn. And may I use a chi square test to look at racial results? So WHAT are the ground rules now?

For those admirers of stare decisis, I suppose you were upset with Brown v Board of Ed. I mean Plessy had been on the books for 60 years. My guess is that precedent is only an issue when your particular ideological position is in jeopardy (applies equally to libs and cons).

Aaron said...

Roger,

http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

You can read it here, and i think it is fairly clear.

SarahWeddington said...

DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN


SEC. 703. (a) It shall be an unlawful employment practice for an employer--


(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or


(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.


The city clearly violated that. The equal protection clause has nothing to with it.

The city refused to hire Ricci because he was white. He was discriminated against with regards to his compensation, privileges and terms of employment because he was white. The same appliest o the 2nd paragraph. Case closed.

Aaron said...

Sarah

you are absolutely right to say that the constitution was not implicated in today's decision. it didn't even survive title VII, so constitutional analysis didn't matter.

Jim said...

Roger -

What I took from the decision is pretty much this:

1) Public sector managers need to ensure that any hiring/promotion decisions are defensible based solely on job performance.

2) That even a racially disparate result is acceptable so long as there aren't other comparable alternatives available to eliminate that disparity. (For example, New Haven was unable to provide proof that there existed a satisfactory alternative to the test they administered.)

3) That the prospect of being sued isn't a sufficient reason to do anything. I think, given the litigious nature of today's society, that's a reasonable statement to make.

In short, as long as public sector managers are doing the right thing and are focused only on the things that matter to doing the job at hand, they have an ultimate defense in the law. They only need by concerned when they haven't taken the time to make sure that they are indeed "doing the right thing" by checking out the available alternatives.

To me this sounds like the right result. It doesn't let those who would discriminate - either intentionally or otherwise - off the hook when they fail to do their due diligence. It also doesn't give license to every race-baiting lawyer or potential litigant to bring suits willy-nilly. It neatly splits the baby without undue harm to the child.

Aaron said...

btw, one more thing. Soto is replacing souter. Souter voted with the dissenters. So Soto is not going to move the court to the left on this issue. fwiw.

Roger J. said...

Jim, Aaron and Sarah--thanks for the information! Much appreciated. And even in language in can understand!

hdhouse said...

Aaron said...
"So Soto is not going to move the court to the left on this issue."

left meaning what Aaron? right? correct?

"we all know fluff when we see it." I think GarageMahal destroyed you sufficiently on that one as well.

So it boils down to the NVKD ilk who probably lives secretly under a sheet and the Aaron types who mouth anything someone tells them to mouth.

She ruled appropriately per precendent. she didn't make law as some of the less gifted here are quick to quote and she was racially motivated as there is absolutely no proof of that whatsoever except what some dullards hatch in their pea sized brains.

To some of you this is just a tug of war between "true americuns" and "some aspect of liberalism that you don't understand or is out of your depth.

For God's sake grow up. You lost. You are going to loose in a year and then get pelted in 2112...beaten like a rented mule so to speak.

deal with it.

ya'betcha!

holdfast said...

In no way is this case the death knell of affirmative action (sadly) - rather it is a slap-down of a city that chose to throw out tests which had already been vetted by the PC-police - a blatant violation of procedural fairness. That is what makes the Circuit Court so despicable - that Sotomajor and her fellow justices did not even think there was an appealable issue in the District Court's ruling is completely stunning. The facts of this case are so egregious that it will likely have limited applicability in more run of the mill affirmative action cases where the employer or school is prudent enough to dress up their discrimination in the proscribed clothing.

Big Mike said...

@hd, we lost an election. You are a loser, you have always been a loser, you have never been anything other than a loser.

And every couple years theres another election.

Aaron said...

Hdhouse

> left meaning what Aaron?

In this case, pro-“benign” racial preferences. And sheesh talk about getting worked up over a fairly pedestrian point. Soto obviously would have ruled the same way as Souter did, because she did so.

> GarageMahal destroyed you sufficiently on that one as well.

Sure if you don’t understand that when the statute is amended in a way that overturns a precedent, that it is then wrong to rely on that precedent. I mean aside from citing a precedent that was bad law in the entire United States, Mahal was brilliant.

> Aaron types who mouth anything someone tells them to mouth

What is the rule on ad homs? Oh, right, you lose.

> she was racially motivated as there is absolutely no proof of that

I won’t say she was racially motivated, but certainly her behavior in this case combined with that wise latina remark raise a reasonable question as to her impartiality. And that disqualifies her.

> To some of you this is just a tug of war between "true americuns"

You know it is tiresome when someone claims that their patriotism is under attack.

> For God's sake grow up. You lost. You are going to loose in a year and then get pelted in 2112...beaten like a rented mule so to speak.

I particularly love how you start that paragraph with “grow up” and then descend into playground style taunts. Cognitive dissonance can be interesting to watch.

Stuart said...

Here is what I don't understand about the City's reasoning or, for that matter the Second Circuit's. The city cancelled the results of the tests for fear that the minorities who didn't get promoted would sue. So fear of litigation drove the decision. Did they really think that the white guys who had their test results tossed wouldn't sue? Everyone in this great country has the right to sue. What the heck kind of justification is it that they were afraid of getting sued?

PatCA said...

Stuart,
Who one is sued by determines whether it is a win or lose, politically speaking.

NightBastard said...

For God's sake grow up. You lost. You are going to loose in a year and then get pelted in 2112...beaten like a rented mule so to speak.


In 2112 the world is controlled by the Priests of the Temples of Syrinx, who determine the content of all reading matter, songs, pictures - every facet of life.

mariner said...

holdfast:
The facts of this case are so egregious that it will likely have limited applicability in more run of the mill affirmative action cases where the employer or school is prudent enough to dress up their discrimination in the proscribed (sic) clothing.


Sadly, I think you hit the nail on the head here.

Stuart:
Did they really think that the white guys who had their test results tossed wouldn't sue?


Yes, either that or they believed the white guys' suit would be tossed. Sadly they were right, until today.

I hope Ricci and his colleagues can recover their legal costs as well as their promotions.

Hoosier Daddy said...

I particularly love how you start that paragraph with “grow up” and then descend into playground style taunts. Cognitive dissonance can be interesting to watch.

This is hdhouse you’re talking about. The resident lunatic leftist who surprisingly wrote a semi-coherent post until he must have soiled his Depends and then lapsed into one of his rants about a Democratic takeover in the next century and something about beating a jackass.

Synova said...

I honestly don't see how "you lost" is relevant to anything at all.

Cedarford said...

Perhaps one side effect of this will be whites and Asians more willing to sue if they think that they are clearly better qualified than the minority candidates the state school admissions, employers, or government authorities select.

I think there was a reluctance to sue from a belief that the courts would always favor the "disadvantaged" / "Brings diversity to the needs of the school, city, private workplace" minorities, somehow.

Now they may have more confidence that Sotomayor, Ginsberg or black voter beholden mayor can't stack the deck against them/

Synova said...

I mean, seriously... if my opinions were shared by only 1% of the population I would *always* lose, so... what?

And since my voter registration still says "Libertarian" it's a fact of life that I don't, can't, (and probably shouldn't!) win *anything*.

So?

Aaron said...

As to why they choose this course...

Hmm, you know I lived in New Haven for three years (okay, technically east haven, but whatever), but I never got too much of a handle on the local politics. Still I can’t help but suspect that crassest kind of identity politics were involved.

It is exactly to prevent this sort of thing from happening that we only allow race to be considered in fairly rare circumstances. Looking over the ranchor of some in this thread shows how ugly feelings get when we talk about any kind of racial discrimination.

Cedar

> Perhaps one side effect of this will be whites and Asians more willing to sue

And its funny that you bring up asian Americans. In affirmative action and similar issues, Asians are so often skipped over. Everyone assumes that they don’t face discrimination, too. its another example of how often affirmative action and similar approaches are so arbitrary.

But more generally what is really wrong is how lazy all of this is. The city would be fully justified in affirmatively taking steps to make their black firefighters better firefighters. But rather than put in all that effort they instead just want to paper over their shortcomings. I have conceded before there is a good chance that the reason why black firefighters scored low was because of past discrimination preventing them from achieving their fullest potential. But that doesn’t change the fact that the highest scorers are probably the best, and ignoring that is to paper over the way black people have been denied the chance to become great firefighters, by pretending they are equally good when they are not, yet.

When my house is burning down, I don’t want a guy who would have been great but for racial discrimination, but a guy who is presently great.

Of course I am waiting for FLS to tell us that Ricci can’t read a stop sign or some other ignorant thing.

Aaron said...

I will say one other thing. I am sick and tired of so-called liberals trying to trash important legal protections in the name of political expediency.

In the Solomon amendments case, liberals tried to establish the principle that excluding people from your campus was speech and even if you accepted money from the federal government on the condition that you won’t exclude certain people, you can take the money and still exclude them. They deployed this argument so they could painlessly protest don’t ask, don’t tell, but if they won, it would have utterly undermined title IX.

In another case, they are trying to hold the attorneys liable for the behavior of a client. Today it is to try to get revenge on bush administration officials and their lawyers. But tomorrow it means that no one will represent any criminal defendants.

And here we have liberals standing up for the idea that if everyone is denied a promotion then there is no racial discrimination, even if but for the race of the persons who earned the promotion, the promotion would have been granted. Today it was to screw a bunch of white firefighters. Tomorrow it will be to screw a black man, or someone else the liberals claim to care about.

When is it going to pierce the liberal mind that these cases don’t exist in a vacuum, that they are setting precedents that will be applied to all cases even if they suddenly have people they like who finds themselves on the wrong end of a bad precedent?

Aaron said...

Sy

> I honestly don't see how "you lost" is relevant to anything at all.

Well, hell, Sotomayor lost and the white house is pretending she is vindicated somehow.

But you are absolutely right. although fundamentally democracy is based on the idea that the majority is more often right than all of the alternatives, that doesn't mean the majority is perfect.

Jim said...

Aaron -

"When is it going to pierce the liberal mind that these cases don’t exist in a vacuum, that they are setting precedents that will be applied to all cases even if they suddenly have people they like who finds themselves on the wrong end of a bad precedent?"

Unfortunately, never. They have never gotten the "Law of Unintended Consequences" - that, however well intentioned, each attempt to tinker with a system will inevitably cause as much, if not greater, harm than it will solve.

From affirmative action to welfare to any number of other liberal policies, there is never any thought given to what the natural end result of those policies are going to be.

Could it be foreseen that a significant portion of people would find a way to game the welfare system? Absolutely. Could it have been foreseen that it would create a subculture that is perpetually dependent? Absolutely. Could it have been foreseen that affirmative action would create rather than heal racial divisions? Absolutely.

For some Leftists, these things are features, not bugs, of the system. It perpetuates their political power, and so they happily maintain the status quo.

For others, they cannot get past the thought that many of those who supported them have or had good intentions, and therefore nothing ill can come as a result.

The fact that this suit ever had to be filed at all is proof that the system is broken, and that it's long past time for enacting constitutional protections that prohibit both discrimination and preferences based on race, religion, gender, sexual orientation, etc. I know that several states have already enacted such amendments, and the fight goes on in many others.

It's like dealing with children. As long as there are "goodies" to be fought over, children will fight. The only way to end the fighting once and for all is to take away the goodies. It's long past time to take these goodies away.

murphy300 said...

". . .setting precedents that will be applied to all cases even if they suddenly have people they like who finds themselves on the wrong end of a bad precedent?"
Aaron--I think the whole point of having "empathetic" judges and legal doctrines such as "social justice" is that there are no bad precedents. You have pure outcome-based jurisprudence where the military, Boy Scouts, white male employees, landlords, etc lose, and the politically more favored win. Is that "Social Justice" or despotism? I don't see a difference between those two terms. Your larger point is very well taken, however. Those on the left embrace Social Justice because they rather shortsightedly see it as benevolent despotism, which it will be only as long as their fellow travelers are the ones wearing the black robes.

Kirby Olson said...

Was it really a trial about Sotomayor?

Has she now (along with her judgement) been repudiated?

NKVD said...

hdhouse - you really should try writing in English.

I do live under a sheet. Sleep under one, and sometimes blankets, too.

I am going to assume that you have rubber sheets where you live, and that they are hosed down by your attendents.

As always, I wish you well - you bring a lot of good things to the conversation here, and without fail, present the best argument that you can.

Methadras said...

The self-aggrandizing wise Latina shill got Sotomayowned.

f1b0nacc1 said...

Aaron,

First, thanks for the inciteful commentary...most appreciated...

On the question of why libs so often back interpetations of the law that they must know will come back and bite them in the ass sometime in the future, I have a simple observation: They don't believe it. Most believe that sympathetic judges, political manuvering, or simple dishonesty will prevent them from having to live with the rules that they want to impose on everyone else...

William said...

In general I think the conservatives are right on this issue. However, it should be observed that it is possible to be right in the wrong way. The overarching purpose of the fire department is to fight fires. If it has the support of the community it serves it will be more effective in the performance of this task. Conservatives should keep this in mind when discussing affirmative action....But liberals should also address the casual dismissal of the sacrifices that Ricci made in order to pass the test. That just stunk. It doesn't speak well of the circuit court's sense of fair play that they should dismiss his case with a flick of the wrist....In the 18th, 19th, and early 20th centuries, white people demonstrated how to use the rule of law in order to advance the interests of white people. I suppose there's a certain amount of rough justice in applying the rule of law unfairly on behalf of black people, but, my goodness, it should be done with more finesse than the circuit court demonstrated.

Penny said...

"The fact that this suit ever had to be filed at all is proof that the system is broken, and that it's long past time for enacting constitutional protections that prohibit both discrimination and preferences based on race, religion, gender, sexual orientation, etc."

Jim, at first you had me saying YEAH, he is absolutely right! Then I realized that the very last thing we need is even more law to right the injustices of previous law.

We do not lack for laws in this country. We surely don't lack from a shortage of lawmakers or lawbreakers, and attorneys to represent both sides.

Our biggest problem is that we RELY TOO MUCH on any of the above to solve our personal problems.

An individual declaration of independence would go a long way in resolving all that "WE" has created.

Harsh Pencil said...
This comment has been removed by the author.
Harsh Pencil said...

hdhouse wrote "For God's sake grow up. You lost. You are going to loose in a year and then get pelted in 2112...beaten like a rented mule so to speak."

Is it really that hard to correctly use "lose" instead of "loose"? You "lose" an election and a knot can be "loose".

NKVD said...

Leave hdhouse alone. He struggles with words and concepts. Colors and simple shapes keep him busy for hours. He likes shiny things.

mariner said...

William:
In the 18th, 19th, and early 20th centuries, white people demonstrated how to use the rule of law in order to advance the interests of white people ..."


It's dishonest to stop there, without also noting that in the 20th Century white people demonstrated how to use the rule of law to advance the interests of black people who had historically suffered racial discrimination.

Black people are about 13% of the U.S. population. Legislation to end discrimination could never have passed without widespread support of white people.

NKVD said...

Heck, we would not have MaObama as president if it wasn't for white people.

He sure loves him some Chavez and Castro. Sure hates freedom.

Thanks, white people. And the brown people who are losing their freedom the world over due to his stupidity and wrongness, thank you too.

mccullough said...

Both the majority and the dissent agreed that it is discrimination for an employer to throw out the test results just because whites scored better.

The difference between them is on the issue of what more does the employer need to do before it can throw out the test results.

The majority placed a heavier burden on the employer before it can disregard the test because of a disparate impact on minorities.

This case had nothing to do with affirmative action. New Haven didn't have an affirmative action plan.

There was no supreme court precedent here and the appellate courts didn't really have anything either.

So the majority said they would adopt the "strong evidence" standard used in cases where the government was justifying race-based hiring/promotion for minorities to remedy past discrimination while the dissent wanted to use a "good cause" standard, similar to that used for when an employer wants to adopt a voluntary affirmative action plan.

Sotomayor's problem isn't that she came out on the losing side. Her problem is she didn't even analyze the issues like Ginsburg did in her dissent. I'd certainly like to hear her explanation for why she thought this case deserved a one-paragraph summary order.

Chase said...

As shown by the ease of logic and legal reasoning on just this post, the Supreme Court got this one way right today.

Liberal reverse racism was clearly exposed in the 4 dissenting judges. And that's racism, plain and simple. The left had better start it's analysis now, because every reputable national poll on every issue without exception is at the tipping point today - and that's with the Sanford's and every cry of hate towards the Limbaugh's. A little bit more screwing up from the left is all it will take to make 2008 look like an anomaly. It's that close right now, even with the MSM doing it's best to prop up the left's talking points.

C'mon lucky 10!

skaus said...

The Ricci case is a 5-4 departure from previous law. I guess it is everybody's view in here that Judge Sotomayer should have consulted Sean Hannity rather than existing precedent before concurring in the Circuit Court opinion.

New Haven used a new test that turned out to have discriminatory results. Prior tests had no such results.

Faced with the situation that no blacks would be promoted, continuing the historic white domination of the fire department in this City with a large black and Hispanic population, and the fact that in their view, the exam could not be defended as sufficiently job related to overcome this criticism, the Civil Service Board decided to retest. New Haven also was handicapped by the 60% weight given to the written exam, mandated by the bargaining agreement with the white dominated union, and the promotion rules that did not allow any qualified candidate to be promoted, but only the top few, which was the final rule that prevented blacks from being promoted.

As Justice Ginzburg, joined by three white males, points out, the majority's characterization of the decision to counter the disparate impact of the test as "race based action" is a characterization that the Court has never previously made. It also confuses the disease and the remedy in the context of past discrimination.

Justice Alito presents a scewed account of the evidence, blaming the result on a black Al Sharpton-like preacher and completely ignoring the white domination of the fire department command, the union that insisted on a 60% written exam for a fire department leadership position that is action oriented and several other factors indicating that African Americans were justified in looking at the exam as discriminatory.

But this room would rather rant and rave than actually consider the facts or the law. Have fun.

And Ann, are you planning to set them straight. You know better.

Chase said...

Oh and - to keep this issue in the Althouse light - everyone remeber that poll last week where support for gay marriage is slipping?

Think about this for just a minute - what happens in every generation to the more "liberally minded" young people as they marry, have families, and begin taking on more responsibility?

You know the answer. Say it out loud even just to your self and your trembling, realizing the future for the left is more and more at a tipping point day by Obama messing up day.

I knew you could.

Chase said...

Nice try skaus.

Limited scenario and fact presentation only poorly make your point. You are ignoring the main issue. Shame on you. Why is it so easy to believe that you know better?

The City of New Haven could have remedied this situation itself, but chose instead to play the race (affirmative action "we don't know nuthin' 'bout no test")card. They acted like children. Worse - they subsumed their fiduciary and civic duties to their baser natures, and refused to serve their whole constituency. In my mind, the City of New Haven's lack of action in this matter represents criminal malfeasance.

Let us know when you want to stop ranting at the obvious and act like a grown-up.

mccullough said...

Skaus,

What previous law did the Supreme Court depart from?

There was no law here.

Penny said...

skaus, you made an excellent case, but none more important than when you got to the "rant and rave".

Surely you see that the result of former ranting and raving is in fact why we are discussing the impact of former rants and raves on current law...not on current ranting and raving, which of course is just "noise". (Wink)

Penny said...

Chaus, we all rant at our own PERSONAL "obvious", and I do believe we are all fully grown.

The real danger in this is when we band together in small homogenous groups to drown out dissent through sheer numbers.

With that in mind, I give a nod and a pat on the behind to Jeremy, whether I agree with him or not.

Chase said...

Sorry Penny, but I disagree with your value judging, trying to make this a personal values judgment.

I realize you are trying for the nicey-nicey feel-good We Are the World play here, but you are trying to say that all values are equal, which of course means all views are then meaningless.

Again, grown-ups recognize the difference. So, don't worry Penny. Someday you'll understand.

Chase said...

In the spirit of helping the morally special needs:

Let's play grown-up Penny, and test you - here's Part I: Words Mean Things:

The real danger in this is when we band together in small homogenous groups to drown out dissent through sheer numbers.

1)Define what you mean by "homgenous group"

2)Do you think that disagreement
with what you believe represents an attempt to "drown you out"?

3) Do you feel that small homogenous groups attempted to drown out dissent through sheer numbers in the following issues / people:

-)Sarah Palin running for President

-)Tea Parties (anti-Obama fiscal plans)

-)Real discussion of same-sex marriage


doo-doo-doo-doo
doo-doo-doo
doo-doo-doo-doo BUP! da-doo-da-doo-doo

doo-doo-doo-doo
doo-doo-doo
BUP! Bup-bup-bup
Bup
Bup
Bup
(doo-doo)

Times up!

David53 said...

With that in mind, I give a nod and a pat on the behind to Jeremy, whether I agree with him or not.

I can only imagine how slimy and soiled your hand must feel.

Mutaman said...

Hooray for White People.

Penny said...

I wasn't "playing", Chase. And I am never polite enough.

Speaking of polite, I owe you an apology. I called you Chaus! I have a feeling skaus is chafing too.

Aaron said...

Mccolloch

> This case had nothing to do with affirmative action. New Haven didn't have an affirmative action plan.

That’s not totally true. Kennedy said that if we went with the Ginsberg/Sotomayor approach, they would have a de facto quota system.

> There was no supreme court precedent here and the appellate courts didn't really have anything either.

I think the statute made it utterly clear that the 2nd circuit approach was wrongheaded, because of that defacto quota issue.

Skaus

> The Ricci case is a 5-4 departure from previous law.

What previous law?

> New Haven used a new test that turned out to have discriminatory results. Prior tests had no such results.

Not true at all. Read the case again. Indeed all of your analysis is based on a faulty understanding of the facts.

kentuckyliz said...

tangentially related but still off topic POP QUIZ

Title VII Civil Rights Act 1964 prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin.

When did the US Government itself have to start obeying this law?












































2000

Alex said...

I can see that the liberal trolls are growing quite desperate. One of the linchpins of left-wing power is reverse-discrimnation against white/Asian people. I can't wait to see what "The One" has to say.

Jim said...

Penny -

"Jim, at first you had me saying YEAH, he is absolutely right! Then I realized that the very last thing we need is even more law to right the injustices of previous law. "

The point of making a constitutional amendment is to eliminate the need to wade through hundreds of pages of imprecisely worded ham-handed legislation to figure out whether one special interest or another has been disproportionally benefitted or harmed.

One sentence is all it would take. It would be the law of the land and unambiguously clear to everyone.

While I would appreciate everyone making a personal value judgment to actually judge a person by the content of the character rather than the color of the skin, the fact is that there are people on both sides of the political spectrum with vested interests in making sure that never happens.

It's just human nature. If there's money to be made alleging a racial grievance even where none exists, then someone will chase that dollar. If someone else believes that they lost out on an economic opportunity (job, loan, scholarship, etc.) because they didn't belong to a favored group, then they will harbor racial animus. There's no getting around those simple facts.

Only by passing a constitutional amendment can we finally get away from nitpicking the various laws regarding discrimination and legally-sanctioned preferential treatment. Each is as harmful to the whole of society as the other.

Just look at the conversation that's been taking place regarding this case. It's ridiculous that we're rapidly closing on 50 years since the Civil Rights Act and still having these kinds of arguments. It's long past time to put them behind us.

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