July 3, 2009

Krauthammer on Ricci v. DeStefano.

"Ricci raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures (in this case, examinations). It's not enough for a city to say, as did New Haven, that it was afraid of being sued by black firefighters."

Yes, but that sounds like a pretty low bar to clear in the next case. It may be an increment of raising the bar, but everything depends on the next case. And since it was a statutory interpretation case that declined to address the constitutional level, Congress could amend the statute and neutralize it altogether. Krauthammer is writing in an aspirational mode... and defining "considerably" downward.


traditionalguy said...

Spot on Professor. Dr Kraut has his own agenda it seems, as highly skilled as he is at analysis. We really do need good public debates like Buckley's old Firingline program. This Blog is a close second to that old TV debate program, and it has a potentially wider audience. Let's hope that the WAPO has not auctioned off the right to abridge internet free speech as a dangerous tool opposing Obamaganda during a crisis, that is during an election not pre-purchased under Blago's rules. Happy Independence Day!

holdfast said...

Prof A is correct - Ricci was such a gross breach of even the most basic procedural fairness that it is easily distinguishable. Of course, that further illustrates that a grievance-mongering mediocrity like Sotomayor isn't fit to launder the leagal briefs of a Scalia, Roberts or Thomas. A competent judicial activist would have papered her holding properly and probably gotten away with it.

rhhardin said...

Considerably is higher than substantially, at least.

traditionalguy said...

It is a faint praise for the purists here, but on July 4th weekend I am thankful that Obama appointed Sotomayor and not a Cynthia Mckenny type. The new Al Franken senate can confirm pretty well whoever it wants to, and 5 to 4 wins while 4 to 5 loses, like 9 to 0, when the SCOTUS decides to enact a new Constitutional rule above and beyond the Congressional process. I predict that Sotomayor will have the decency and class needed to follow traditions at those moments in the future. What more can we expect to get from a Kommisar Obama nominee? If you want better nominees, then get your haughty butts in gear and elect Sarah Palin in 2012, without smearing hispanic women as un-American aliens before that crucial election day.

Jim said...

holdfast -

You're absolutely right. This was the essence of the slapdown that Ginsburg gave Sotomayor:

"You idiot! You should have given New Haven a chance to revise its claims so that they would pass the smell test! WTF?! How stupid can you get?

But nooooo....Your lazy ass couldn't be bothered to do that, could you? OMG! I'm so steamed right now!

Here's a clue, sister: when you said 'the facts aren't in dispute' you screwed me! Screwed me! ARRGGHH!

Here I am trying to be all lawyerly and whatnot trying to find something to hang my dissent on, and you go leaving me hanging out in the air completely!

I cannnooootttt believe you did this to me. Now I've got to jump through a bunch of hoops to justify why it's OK to discriminate against white people when all you had to do was your JOOOBB! Heeellloooo?

I'm so sick of picking up your sh#%T."

Brent said...

The new Al Franken senate can confirm pretty well whoever it wants to

That is the ONE thing that Republicans want to keep in front of the public for the next 10 months:

The Democrats own it and they have NO more excuses.

The public is already getting more and more insecure about Obama's and Congress' schemes, as polls are daily showing. If the Republicans can't take advantage of that trend and the gift that 60 seats gives to them, there is no hope for them.

Fred4Pres said...

The GOP could continue to act like a blind sea pig, and they will still find a few acorns if the economy is not improving in 2010 (ACORN not withstanding). And if it is still bad in 2012, then Obama is in serious trouble (unfortunately so will the rest of us).

holdfast said...

Jim - Well, it's not that hard to read. Sotomayor thought she didn't have to try - maybe she's lazy, maybe she's just not that bright, or maybe some combination of the two.

Kansas City said...

Ann is right in the narrow sense that Ricci involved very unusual facts that obviously proved reverse discrimination. There will be few future cases where public entities or private employers are clumsy enough to take away earned promotion because there are not enough blacks, so the case will not come into play very often.

Ann is wrong in the expectation of litigation. While a democratic congress will customarily amend employment statutes to eviscerate pro-employer Supreme Court decisions, this one would not fly politically -- "the let's discriminate against white guys act" cannot masquarade as a "civil rights restoration act."

And Krauthammer is right on the larger issue that this decision is a step back on the parth to colorblindness. The Court would not go to the constitutional issue in Ricci, but if Kennedy is ever ready to go along, then affirmative action would be wiped out. Even without a Supreme Court rulign on constitutional grounds, in the big picture, you cannot have a black president and all the other recent advances by blacks and keep the notion of affirmative action round very much longer.

A republican should seize the mantle of affirmative action based on socio economic need without regard to color, and it would kill race based affirmative action (and be good for the country).

However, one last point is that affirmative action also benefits women. That issue, which is not often talked about and hardly seems to be needed anymore in terms of opportunities for women, adds to the political support for preserving the affirmative action status quo.

Kansas City said...

I suppose it should be Ricci is a step "forward" [not "back"] on the path to colorblindness.

Bruce Hayden said...

I respectfully disagree, esp. with our esteemed blogress and law school professor.

My understanding is that courts, and in particular, the Supreme Court, go out of their way to side step Constitutional review, esp. if they can come to the same result through statutory analysis. Yes, it would be nice if they had addressed the Equal Protection aspects here. But that would have been extremely dangerous. Why? Because then the Constitutionality of Title VII might have been in play. Much better to find a way that the statute passes Constitutional muster, as they did here. After all, statutes are considered Constitutional, and there is plenty of precedents for finding a way to interpret them accordingly before finding the unconstitutional - and esp. ones like this one that have become well established and prominent.

Jim said...

KC -

"A republican should seize the mantle of affirmative action based on socio economic need without regard to color, and it would kill race based affirmative action (and be good for the country)."

If Republicans were smart they'd get on the Ward Connerly bandwagon and support constitutional changes starting at the state level that ban both preferences and discrimination based on race, religion, gender, or sexual orientation.

Support for affirmative action drops every year, and the latest polling of registered voters (note that there is sharp divergence between polls of all adults and those of registered voters, but if you're not a registered voter than your position on issues is pretty much irrelevant in politics) show that support for it is now a distinctly minority position.

mariner said...

Support for affirmative action drops every year, and the latest polling of registered voters ... show that support for it is now a distinctly minority position.

Hee, hee.

Nicely done, Jim.

Kansas City said...
This comment has been removed by the author.
Kansas City said...


Republicans have been on the Ward Connerly bandwagon. It is right on the principle, but it does not appear to translate into votes for candidates. And with changing demographics, anti-Affirmative action may be a net minus regardless of the polls.

And, being pro-Connerly does is not inconsistent with being pro-affirmative action based on socio economic need.

So, to turn affirmative action into a plus, republicans should both support Connerly AND offer a better approach.

They could call it "American Action" and argue that there is nothing more American than extending a hand to someone less fortunate to help them succeed, if they are willing to work hard to do so.

It could be a "game changer" politically and help the country at the same time. The opportunity has been there for years, yet no concerted effort by republicans/ conservatives to seize it.

Duscany said...

More and more people are increasingly able to spot the moral fallacy of affirmative action. The New York Times recently printed seven letters to the editor regarding the Ricci vs DeStefano decision. Six of the seven came down strongly for Lt. Ricci. Only a few results-oriented liberals still feel that is wrong for whites to use a civil rights law designed to help blacks and use it to help themselves as well.

former law student said...

Only statists would want Federal courts to micromanage good faith hiring and promotion decisions. If it flunks the smell test, why send it out for a microbiological contamination assay?