[erepsysoulpfbs]

The next nominees should include an Asian, a Muslim and a Hispanic -- preferably a female Asian, Muslim and Hispanic. Sotomayor is the best choice for this round in my view.

[Grizli]

Pretty sure Obama's pick will be a woman, but I think it'll be from acedemia.

Possibly Kathleen Sullivan.

[chipkluchi]

The Supreme Court
Causing a stir
Jun 29th 2009
From Economist.com

A controversial ruling by America's Supreme Court

AP

IN ITS most closely watched case this year, America’s Supreme Court ruled on Monday June 29th that the authorities in New Haven, Connecticut, were wrong to deny promotion to white firemen because no blacks had scored high enough marks in an exam to warrant advancement. The case, Ricci v DeStefano, was brought by white (and Hispanic) firemen who had taken a test in 2003 to determine their suitability for promotion to lieutenant or captain. They accused New Haven of discrimination when it refused, fearing litigation, to certify the results. With no blacks succeeding, the exam had become a politically contentious issue in the city.

In a 5-4 decision, the Supreme Court held that New Haven’s actions violated the 1964 Civil Rights Act. It found that the firemen's test was job-related, and that there was no obvious alternative test that more blacks would have passed. The city had rejected the test because it feared being sued by black firefighters over its “disparate impact”. But the court ruled that such a suit should fail. Writing for the majority, Justice Anthony Kennedy concluded that the firemen had studied for months at considerable personal expense, and so the injury caused by New Haven’s “reliance on raw racial statistics at the end of the process was all the more severe”.


The Court was split along ideological lines, with Mr Kennedy providing the decisive vote. Summing up for the dissenters, Justice Ruth Bader Ginsburg argued that the white firemen “had no vested right to promotion”. She reasoned that in largely black New Haven “minorities are rarely seen in command positions” and that other cities had designed tests with “less racially skewed outcomes”.

As well as its potential impact on employment law, the case attracted interest because one of the judges on the appeals-court panel that sided with New Haven’s position was Sonia Sotomayor, Barack Obama’s nominee for the Supreme Court to replace the retiring David Souter.

The decision in Ricci provides some embarrassment for Mr Obama, so close to the start of Ms Sotomayor’s Senate confirmation hearings on July 13th. The White House’s view is that Ms Sotomayor is a centrist judge, a pragmatist with solid rulings in hundreds of cases during her time as a district judge and on the court of appeals. She would also be the first Hispanic on the Court, a fact noticed by a Republican Party that had once hoped to make great gains among that group at the polling booth. Democrats are confident that Ms Sotomayor will sail through.

So far, the public has responded positively to her nomination, although most know little about her. One poll in mid-June found that 58% of people were “undecided” or had “not heard enough” about Ms Sotomayor to say whether or not they favoured her nomination. The same poll also found that 74% said it was important that the Court reflect the gender, racial and ethnic make-up of the country.

The Republicans have recently started to push against her nomination. Orrin Hatch, a senator from Utah and a member of the Judiciary Committee, says it is critical to find out if Ms Sotomayor endorses the “restrained view” of judicial power or the “activist view”. Conservatives are also making noises about Ms Sotomayor’s time on the board of directors at the Puerto Rican Legal Defence and Education Fund, a civil-rights group that some Republican senators believe is “outside the mainstream”.

What could be more troubling for Ms Sotomayor is her remark in a speech in 2001 that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life”. Jeff Sessions, the senior Republican senator on the Judiciary Committee, has attacked Mr Obama’s notion that judges should have “empathy”, a characteristic the president says he looks for in members of the judiciary. “When there is empathy toward one, is it not prejudice against the other?”, argues Mr Sessions, who thinks Ms Sotomayor may “look outside the law and evidence”.

Although Democrats are convinced Republicans will get nowhere by attacking the “empathy” of a judge, such judicial underpinnings were raised in the Supreme Court’s Ricci decision. The dissenters noted that the white firemen had attracted the court’s “sympathy”. Justice Samuel Alito disagreed, saying that the petitioners had no right to sympathy, but they did have a right to “even-handed enforcement of the law” and not to be discriminated against.

[OmqMZtkv]

You know something, I have heard enough about this.

Has anyone taken a look at the exam? Has anyone been able to point out WHAT things in there would somehow be magically known by a white man and not a black man?

Is there something I am missing here? From what I have seen, the only things not known between races is usually cultural, not academic, ESPECIALLY once exposed to the professional field and then examined on it in areas concerning it.

And although I respect Ginsberg, simply siting the lack of minority contribution to the forces officers may be a sign of discrimination, or it may be a sign of the lack of qualified applicants in that particular geographic area within that demographic. There may be a shortage of qualified minorities for those positions based on poor education in certain neighborhoods and the like, but since when are we obligated to get unqualified workers based on prior discrimination.

"OK, you never learned how to do this-and-that because of the poor public schools in your area when you grew up, but we will ignore what you don't know because of this, even if it matters in the performance of your position".

I think these candidates that DID NOT pass should be offered review courses to study for the test, and have them try again another time.

Seems to me everyone is focusing on race rather than academics. If these guys passed the test but were not promoted, we would have a case, but not like this.


Not until someone points out how this test could be discriminatory and how the areas that were not known by the failing examinees would NOT be pertinent to the performance of their duties.

[Wahwlsnt]

Well stated.

[WGRocky]

This one really hits home, for me. An immediate family member is one of the New Haven 20 who recently won at the U.S. Supreme Court. Obviously, I am pleased at the Court's decision, and am looking forward to carefully reading the entire decision online. My expectation was for a 5-4 split along typical ideological lines, and that was exactly the outcome. Nonetheless, I feel that justice was served in this case. This was not a "controversial" decision by the Court. It was a correct decision.

[CiccoineFed]

SCOTUS knocked down a law of the city of New Haven, which the Court of Appeals had upheld as within the right of the city / state to put into effect.

In no way is this a repudiation of Sotomayor or the other C of A Justices -- who found in favor of the city of New haven based upon CT State Law.

[jq0AFTTC]

So this law says holding up the careers of more than a few individuals on the suspicion of bias when there is no other proof is a fair and equitable law?

I am serious whan I say forgive my ignorance, but what exactly does this law say, and how does it make it right to punish the people today for things they, and even their ancestors were not guilty of yesterday?


Again, what was in these tests that could even remotely be considered discrimnatory and therefore subject to dismissal in court/by law?

[ElenaEvgeevna]

Over the past 45 years it has been held that results of tests which displayed poor showings by specific racial groups were suspect in regards to the possibility of discriminatory content in the questions / tests.

As NH has pointed out:


... the only things not known between races is usually cultural, not academic ... The tricky question becomes: Were such possibly discriminatory tests designed with an intent to keep out those who were not wanted? Or: Were the tests in question inherently unfair due to bias which was so instilled that the creators of the tests inadvertently structured them in a way that led to discriminatory results?

Anyone with any knowledge of US history knows that such practices, with the goal to hold tight to the status quo, existed in the past. The intent of the CT law which ahs been knocked down by SCOTUS was to assure that tests were fairly applied.

It seems that the majority of SCOTUS now believes that the USA has sufficiently cleansed itself of any such bias and therefore the playing field should be deemed fair unless, perhaps, a plaintiff can show & prove that a specific test is discriminatory and in violation of the '64 CRA.

[nakeseireo]

It seems that the majority of SCOTUS now believes that the USA has sufficiently cleansed itself of any such bias and therefore the playing field should be deemed fair unless, perhaps, a plaintiff can show & prove that a specific test is discriminatory and in violation of the '64 CRA. I am also assuming that this is the case, as no questions in particular have come to light. If they were addressing more the actual calidity of the test rather than the validity of the decision made concerning it, I would be more in favor of discussion, but this seems odd.


An investigation into he questions on the test, an assertation of whether race was one OF the questions/pieces of info on the test, or even whether or not the NAMES of the individuals passing/failing had anything to do with it should be looked into.


But the mere fact that we did not hear anything about unfair practice until AFTER the results makes me feel a bit weird, and the fact that we have been hearing more about race and individual rights rather than the meat and potatoes of the case involved mekes me much more speculative of what actually happened and what is being decided.


Proof of discrimination should be necessary to invoke these procedures. That being said, impedence of obtaining that proof (such as disclosure of the test given or release of the actual tests taken) should not be tolerated.

You can't enforce the good by automatic opposition to an unproven evil. Find the problem and correct it, don't try to correct problems that don't exist or you may end up creating some where there were none.

[Ebjjrxrd]

More on the Ricci case, the law and Sotomayor :

Much Ado about Ricci

The Daily Voice
Christopher J. Metzler

Despite a long and varied legal career, stellar educational credentials and service as an appellate court judge, Sonia Sotomayor's qualifications to serve on the Supreme Court of the United States are being reduced to a single case, Ricci v. DeStefano. If you believe her opponents, Judge Sotomayor, as a member of the majority in this case ignored the law and simply decided the case based on the fact that she hates White men.

The fact is that Judge Sotomayor was part of a three judge panel that ruled on the case. The entire panel (en banc) of the 2nd Circuit had an opportunity to rehear they case and they declined to do so. Does this mean that the entire panel is racist? The truth is that the panel's ruling simply followed existing precedent. In theory, this should delight, not dismay the band of constitutional purists that play the talk circuit. Oh the hypocrisy! They should also admit that by selecting this case as their main line of attack, they are stoking naked racial animus.

First, so many of the judge's critics claim that she is a judicial activist and thus she disregards existing law. The problem with this argument specifically in the Ricci case is that anti-discrimination law allows for an employer to be held liable for both intentional (disparate treatment) and unintentional (disparate impact) discrimination. Thus, an employer such as the city of New Haven cannot ignore racial outcomes on a promotional exam. This is the current state of the law; so why haven't the "legal purists" among the judge's critics called on Congress to change the law? Or is their argument that a judge may legislate from the bench only where the judge agrees with "solid conservative principles"?

Second, the case raises the issue of equal protection. The equal protection clause of the Fourteenth Amendment provides that "No State shall deny to any person the equal protection of the laws." Although precisely what this means has never been definitively answered by the Courts, we have heard quite a bit about the intent of the framers in this debate. As to the 14th Amendment, the historical intent is clear. The amendment was passed post-Civil War in an attempt to protect Blacks from state sanctioned oppression and discrimination. Of course, the text of the equal protection clause does not limit protection to only Blacks, and I am not suggesting that the text of the equal protection clause reads that equal protection is exclusively for Blacks. I am suggesting that in this debate, we analyze all sides of the issue not just those that support our world views.

The reality is that efforts to protect Blacks from discrimination in the United States have a particular and specific historical context whether critics choose to acknowledge that context or not. Despite this frame, in the employment context, the courts have expanded that protection to other targets of discrimination.

Which leads to the question of how constitutional purists in strict constructionists' clothing could expand a clause that was originally and historically intended to protect only Blacks to other groups without being activists? Could it be that the Supremes do in fact make policy? Could it be that Judge Sotomayor and her colleagues are the purists here? Could it be that "intent" is determined not by some detached, disembodied, judicial intellectual avatar but by warm blooded human beings?

The theory of discrimination at work in the Ricci case was that even though the promotional test was "neutral" in that all had to take it to be eligible for promotion, the results had a different (and worse) impact on Black firefighters. Under a theory of disparate impact, the City of New Haven had to consider race to the extent that its selection tool (the test) affected Blacks differently and worse than Whites. To be sure, the City would have been sued regardless of the decision that it made. Given the current state of the law, the court's decision was reasonable and not racial profiling as some would have us see it. I do agree that the court should have written a more extensive opinion about its reasoning. However, there is nothing that requires the Court to do so. Thus any argument that Judge Sotomayor and her colleagues made a decision solely on the basis on race is cretinous.

Third, this is not the only opinion Judge Sotomayor has written. So why have her opponents chosen to amplify this one? The answer is simple. For all of the talk about moving beyond race and judging people based on merit, avoiding identity politics and the like, America still has unresolved issues with race. Thus, the brawn of race as a political, cultural and wedge issue cannot be ignored. The Ricci case strikes a nerve with many who want the courts to rule that White men are the victims of discrimination in the same way that Blacks have historically been in America thus giving them legal and political cover to play the race card. So, why haven't her critics simply said so? Because they live in racial glass houses from which they throw stones.

Moreover, on the issue of race, "original intent" is powerful code that has been effectively employed to change the conversation. The fact is that anti-discrimination laws were originally enacted to protect Blacks from discrimination by Whites. The 14th Amendment's Equal Protection's clause was enacted to protect Blacks from state sanctioned discrimination at the hands of Whites. This is the original intent. However on the issue of race, Roberts, Scalia, Thomas and Alito have made law rather than interpreted it by ruling, for example, that affirmative action is unconstitutional even though the framers never envisioned affirmative action. So, who are the judicial activists here?

Finally, opponents of Judge Sotomayor by selecting the Ricci case as their main line of attack against her have proven what I have written all along. The term "post-racial America" is an oxymoron.

Dr. Christopher J. Metzler is associate dean at Georgetown University and the author of The Construction and Rearticulation of Race in a Post-Racial America.

Copyright © 2008, TheDailyVoice.com, Inc.