July 1, 2009

"It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position."

"I understand that supporters of Judge Sotomayor are claiming that she has been 'vindicated' by the fact that four dissenting judges in Ricci adopted something resembling the position she took when the case was before her. It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position. During the Bush years, when a divided Supreme Court would strike down this or that Bush anti-terrorism measure, some liberals were quick to declare the president 'lawless.' They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration's position. Fortunately, liberal commentators seems to be 'growing in office.'"

Quality snark from Power Line, which links to this Stuart Taylor piece explaining why, in fact, the 4 dissenting Justices were not on the same page as Sotomayor:
[E]ven Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base....

[W]hile Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

12 comments:

Chase said...

Powerline is the most accurate predictor of future events of any political blog.

Which should be extremely troubling when one reads their discussions of the economic near future of the United States.

Once again, their analysis regarding Senora Sotomayor is spot on.

Aaron said...

Chase, and given the civil rights act of 1991's specific rule against quotas, then sotomayor's approach would have achieved in fact what the statute forbade: a quota system.

traditionalguy said...

I am comforted. Nearly every legal case taken up at SCOTUS is a controversy of not yet known law from prior cases or Jurisdiction precedent differences. So the Right wing and the left wing equally pretend that every reversal is evidence of something rotten in Denmark. Since the MSM only publish those attack views against the right wingers, it does seem unfair.

The Capitalist said...

The MSM should have informed people of the amicus brief, but they did not. They oversimplified the way the SCOTUS approached the case and focused purely on the 5 to 4 ruling.

Invisible Man said...

Powerline is the most accurate predictor of future events of any political blog.

Words can't express how funny that statement is, if you read it without the sarcasm that Chase obviously intended.

garage mahal said...

Powerline is like Nostradamus. In reverse.

The Exalted said...


They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration's position.


uh, wrong.

Methadras said...

Justice Kennedy questioned the validity of the test overall did he not? So when 12 whites and 2 latinos passed the test and 40 some-odd white and another 10 latinos didn't pass the test, no one said anything about that? The fact that all the black candidates didn't pass the test leaves only two options open. The first one is, they are all stupid, the second one is, they were all setup to fail. The face that all the black candidates failed either points to their stupidity/ignorance or the test is rigged towards white people. Since all but 12 white failed the test, then I'd say it wasn't rigged.

Chase said...

Once again, their analysis regarding Senora Sotomayor is spot on.


Which doesn't mean shit. Most of all to the Senate Judiciary Committee that will spend days asking meaningless questions to which they will receive nearly meaningless answers to while giving the few republicans on the committee a 15 minute chance to grill this woman which they won't do and then they will ram her through. It's all Kabuki and unless she is caught in the act of something illicit, she will become Justice Sonia "The Wise Latina" Sotomayor.

Aaron said...

Meth

> The fact that all the black candidates didn't pass the test leaves only two options open. The first one is, they are all stupid, the second one is, they were all setup to fail.

Or here is possibility number three. The best firefighters today are white, but if New Haven had taken affirmative steps to develop black talent in firefighting, then maybe the numbers would have been more even. Remember this is not merely or even primarily a test of intelligence but also of knowledge. I believe that between the races as a whole intelligence/talent is evenly distributed, but I readily acknowledge that knowledge is not always evenly distributed.

But when my house is burning down, I don’t want the guy who would have been a great firefighter if given a square chance, but rather the guy who is presently a great firefighter.

One of my most basic problems with the outcome New Haven wanted is that they wanted the easy way out of this dilemma. I want NH instead to try to find the black firefighters with great potential and work extra hard to develop that potential. Build up those firefighters so that next time they are faced with that test they will ace it, rather than instead trying to accept anything less than the best firefighters possible.

kcom said...

"I want NH instead to try to find the black firefighters with great potential and work extra hard to develop that potential."

So you would discriminate against Hispanics in favor of blacks? (And is that based on the history of slavery in New Haven?)

kcom said...

How about this for a better idea. Why doesn't the NAACP (or some other equivalent organization) identify "the black firefighters with great potential and work extra hard to develop that potential" and leave the government out of it.

Then you don't get in the position of having a government treat people differently based on the color of their skin. Or does equal protection under the law mean nothing any more. Is Martin Luther King's dream dead? Why is it government's job to be a nanny for one particular skin color? If help is offered through the government, it should be offered equally to all. If more help is needed, it should be through an independent channel. The dyslexic guy got the help he needed without the city spending a dime. The NAACP could really live up to its name if it stepped up here.

MJ said...

Methadras said...
Justice Kennedy questioned the validity of the test overall did he not?

I interpret the decisions this way:

Kenndy et al believe that since there is evidence the city developed the test to ensure there wasn't racial bias the city's post hoc claim of same is a sham rationalization to prevent the promotions from not including blacks. This is further supported by the fact that the second testing consultant brought in to review the test results did not actually review the test.

Ginsberg et al want to send the case back to the lower court to rule on whether this is in fact true. I can't tell if this means they feel this issue wasn't proven given the available facts or whether they think it is not their business to set the rules until after a lower court has made their determination.