Waiting For Ricci

The Supreme Court should release its decision in the New Haven firefighters case today.

[UPDATE:  Sotomayor is overturned 5-4, which preserves her cred as a reliable liberal:

WASHINGTON (AP) -- The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

"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 Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

This won't be that awkward for Sotomayor - she is a liberal judge with, at least on this case, mainstream liberal views.  But it will be helpful to give the Senate Democrats an opportunity to defend her position.

EVEN THE LOSERS:  Jonathan Adler of the Volokh Conspiracy studies Footnote 10 of the dissent and infers a rebuke to Sotomayor:

First, Justice Ginsburg's dissent contains an interesting footnote -- Footnote 10 -- suggesting that she and the other dissenters were prepared to vacate and remand the case as recommended by the Obama Administration's amicus brief.

10. The lower courts focused on respondents’ “intent” rather than onwhether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.

This would suggest that even the Court's dissenters believed that the Second Circuit did not properly address the issues raised by the New Haven firefighters, even if they would adopt a standard that would make it difficult for the firefighters to prevail.

The Workplace Law Profs summarize the case; Glenn Reynolds has lots.]

RESUMING:

The non-PC Steve Sailer has fun with Emily Bazelon of Slate, who looks with disfavor on family ties and acquired expertise in mundane matters such as saving people's lives but presumably has a different view for important matters such as law school admissions.  A snippet of his Big Finish:

I looked up "Emily Bazelon" on Wikipedia (accessed 16.59 ET, June 28 2009) and discovered that while she’s very bright, she’s not exactly the most self-aware person. When read in light of her biography, her Slate article about privileged white firemen becomes an amusing epitome of unthinking Gown v. Town prejudice.

Wikipedia tells us: [Bazelon] graduated from Yale College in 1993 and from Yale Law School in 2000."

Skip a bit and:

Moreover, this legal writer’s concern about the advantages Frank Ricci garnered by being related to firemen seems a little ironic in light of this Wikipedia line:
 

"She is the granddaughter of Judge David L. Bazelon and cousin of feminist Betty Friedan."

Actually, as her 2005 Slate article Shopping with Betty suggests, she’s more like the second cousin twice removed of the proto-feminist (and crypto-communist) authoress of the bestselling Feminine Mystique. Still, the two were fairly close despite their age difference.

More strikingly, the legal journalist’s grandfather David Bazelon was the most powerful judge in America not on the Supreme Court when he served from 1962-1978 as Chief Judge of the U.S. Court of Appeals for the District of Columbia. Indeed, considering his close relationship with the Svengali of the Warren Court, William J. Brennan, quite possibly Bazelon was more powerful than several Supreme Court Justices.

Mr. Sailer overlooks that she is also a woman.  Well, then.

Comments

[Sue]

Wow. Greta was really snarky about Sanford's mistress. I wasn't expecting it. She doesn't do snark very often.

[Sue]

Ann,

I just read that. It's a good thing the war on drugs is over too.

[DrJ]

How about the War on Cancer? There's a real nation-state there.

Oh, and Happy Birthday, Verner!

[clarice]

Did anyone ever suggest Napolitano was smart?

[Ann]

Sue,

I believe Ms Napolitano is a Ms Reno mini-me!

[Ann]

Didn't Verner say something about traveling soon? I hope she is and having a glorious time.

If not, I hope she is at a country western bar pinching cute cowboys.

HAPPY BIRTHDAY, VERNER!

[Stephanie]

Happy Birthday, Verner! And many more!!!!

[DrJ]

country western bar pinching cute cowboys

Bumpersticker wisdom: "Save a horse, ride a cowboy."

[Pofarmer]

"As Krauthammer points out--Zero is aligning himself with Chavez who could take military action against Honduras. It's within the realm of possibility. What would Zero do then?:"

Help Chavez?

[Ignatz]

--Ignatz:

Don't know whether you checked back or not, but I posted a response to your invitation at the tail end of the Fitness Thread. Loved your comment!--

Hey JMH,
I followed your link and will respond on that thread.
Very similar experiences for me.

Further OT,
CA fish and game has now been reassured we won't be slaughtering any owls or wolverines so logging is close at hand. Won't be posting too much except when I get a chance here and there.
I know I said that before but things look clear now.

[Pofarmer]

"once the evil doers get power, unde the guise of a "vote" it's hard to get rid of them."

From her lips to God's ears.

[cathyf]

Happy birthday, verner!!!

(As they say in Winnie the Pooh, "Many happy returns of the day.")

[Pofarmer]

"CA fish and game has now been reassured we won't be slaughtering any owls or wolverines "

Why not? Wolverines are nasty critters, and you should not be so lucky as to have an owl nest above your combine, man, that's some nasty stuff they eat, and, well, comes out the other end too.

[Ignatz]

Po,
If they found a wolverine, which may not even exist in CA anymore, on my property I might as well grow a long tin bill and pick chit with the chickens, cause I surely wouldn't be logging in the foreseeable future.
And a Great Grey Owl wouldn't be much better.

And if they found me with a gun in one hand and one of either in the other I'm afraid Bernie and I might be sharing a cell for about the same duration.

[Stephanie]

Was sitting in the study a few nights ago and looked out on the deck and there, picking out dinner from our koi pond, was an owl about 14-16" tall. It saw me move toward the window and flew away. Wing span of about 3-4 feet. Wondered where the koi were going... we had 14, we now have 9.... and a net over the pond.

[sylvia]

Well JM Hanes, I don't know what the test consisted of and have no way of knowing that the test accurately reflected the duties of a firefighter. A firefighter should be strong and quick, it's not exactly PH D work.

Now that I'm thinking of it more I'm kind of supporting Sotomayor. I mean come on, who promotes based on skill. Or intelligence. If they promoted on intelligence I'd be CEO somewhere. Most promotions are based on image and social ass kissing skills, and have little to do with ability. Most other jobs don't require tests. Why does this one have to.

So in America, I think people should have the freedom to design any promotion criteria they want. And if they don't like their criteria, they should be able to change it if they want to. I don't see where it says that people hiring cannot use whatever test they want.

Now if the hiring criteria are openly racist, then no they can't use it. But that doesn't include using a different test. But if they give a second test that judges on skin tone say, that might not be acceptable. But since we have not admitted that different races have different abilities in this country, most any test is as good as another test. So it doesn't matter what test is given as long as all can apply and have the same rules and judging criteria. So I see no reason why the firefighter bosses couldn't give another test if they wanted to, as long as the next test was fair. Or a third or a fouth test, whatever.

[narciso]

Sylvia, you are remarkable and not in a good way. You're practically spamming every thread, with either ignorance, or as with
Neda's death, malicious talking points of the Iranian government. If you don't know about the test, look it up. but don't deny
how the city of New Haven, tried to railroad
these firefighters. One wonders why did they
push for summary judgment and why did Sotomayor so readily accept it.

We know exactly who Obama is, and that's why his coming to power, concerned us so. He's a colleague of Chavez and Ortega and now Zavala; and well you know the phrase about 'birds of a feather'. That was also
one of the reasons that we collectively liked the Governor of Alaska, she could almost intuit that about him, and the consequences of his election. Much like with Central and South America, what could not be won by the force of arms, has been
surrendered through the franchise, and the cooptation of the media.
won b

[Janet]

The Washington Post headline today reads...
"Justices Rule for White Firemen In Bias Lawsuit"

No mention of the fact that one of the firemen was Hispanic.

They can't have divisions in the liberal victim groups. What if whites and hispanics banded together against blacks?!?!...and in the Lombard story - What if blacks speak out against gay adoptions?!?!

No, the media has decided it is better not to mention certain facts.

[clarice]

Well, I made a similar error--there were two groups involved. In the promotion list for lieutenant only whites made the grade (test results selecting top three in each test). Using the same criteria for captain those who came out on top included some hispanics. Quickly reading the factual recitation in the opinion in pdf I missed the breakdown of the second group. I'm not sure it was more than that.

[AlexinCT]

sylvia:"For instance, whites tend to test better in certain ways, such as SAT type tests. Is that type of testing relevant to all situations, where other factors might come into play? I mean what if a black boss decides to give all the apllicants tests on sprinting or basketball dunking ability, and then used that to pick his applicants"

Well, if the job requires people to know how to "sprint and dunk basketballs", then the test would be fair sylvia. Otherwise it is nothing but a rigged test. You are not implying SATs and Fire fighter tests are "rigged" because they attempt to measure needed qualities in candidates applying for specific positions, and that since some candidates seem to do well while others don't, there is a nefarious reason for this?

[clarice]

More than that--the court detailed the scrupulous efforts of the city to fashion an appropriate test. But if you want to waste time debating with someone who just makes shit up , Alex, be my guest.

[sylvia]

Yes Clarice, I do make shit up. It's called thinking for myself, and not swallowing every talking point that my conservative blogs tell me to. Which to you is apparently the same thing.

[clarice]

I invite you to read the opinion which contains pages and pages of information about how the tests were designed and measured to be certain they were appropraite. You nedn't even look at a conservative blog to learn that.

Of course, there appears to shortage of room in your braincage within which to regularly MAKE UP SHIT.

[clarice]

**No shortage of room****

[jimmyk]

The other whoppers in Sylvia's post are, first, to neglect to distinguish between private business and the government. It may be reasonable to say that a private business is free to decide on its promotion standards, as its owners will suffer the consequences of bad decisions. But here we have a government using taxpayer dollars, so it is our business. Second, the fact that Sotomayor sided with the city is only a small part of the issue. It's the fact that she and her panel couldn't even bother to confront the issues head on with a full-fledged opinion.

Frankly, I think we're better off with Sotomayor than the next candidate Obama would pick, for a variety of reasons, but that doesn't mean she shouldn't be scrutinized and criticized. Maybe there will be an impact on her and on other judges if their actions are held up to the light of day.

[JM Hanes]

Good grief, sylvia:

"Well JM Hanes, I don't know what the test consisted of and have no way of knowing that the test accurately reflected the duties of a firefighter. A firefighter should be strong and quick, it's not exactly PH D work."

Not only do you know nothing about the test, you clearly don't know anything about firefighting either. Ignorance is a lousy basis for opining. You're got cognitive dissonance down pat, however, if you can support Sotomayor and unfettered promotion criteria at the same time.

[sylvia]

I confess I am not that interested in this topic and did not bother to look up the test, a fact which I disclosed upfront fully for all to see. So I did not make anything up.

However, that does not take away from my larger points that "tests", no matter how great the test is, are not alway a exact indicator of job skills, and no matter how well they are designed cannot help but be somewhat arbitrary. And my second point is that a business should be able to use or change any criteria they want to, as long as the criteria in and of themselves are not racist. And if they gave a second or a third or 50th test, in which the test itself was not graded in a racist way, that should be okay.

Now whether it was a government outfit might be something to consider, also the technicalities of Sotomayors opinion is a whole other matter which I have no opinion on yet.

"Well, if the job requires people to know how to "sprint and dunk basketballs", then the test would be fair sylvia. Otherwise it is nothing but a rigged test."

See I don't agree with that. If someone wants to give you a basketball dunking test to get a job, it's a free country and no one can stop you. Now whites may not like it, but I doubt there is much they could do about it. On the other hand, if people complain about the basketball dunking test, I see no reason why the bosses could retest in some other way if they wanted to. They are free to do that to.

[sylvia]

*toO* sheesh.

[You should see the shit I can make up about myself.]

Well personally I think sylvia's idea about making up your own promotion criteria is pretty remarkable.

[Rick Ballard]

JMH,

If everyone would use the correct honorific when replying to Sylvia it would establish the proper tone for dealing with her. "Sylvia, you ignorant slut" with appropriate follow through would enliven the threads where she chooses to demonstrate her rather peculiar intellectual acumen.

[I love you, sylvia; keep it up.]

uh, you missed the misguided bit, which is the problem.

[rick]

Sylvia,

The test had nothing to do with the physical part of firefighting. It had to do with leadership and administrative knowledge. The job was to be an administrator. That is something that has been determined by tests for years, both in private industry and in the government at all levels. It is about knowledge. That is why the promotion was to be based on this test. The people who passed studied for the test and did well. The others did not. After the test results came out, then the city decided that their fair test, and they went out of their way to have a fair test, was not fair and they, like Lucy, pulled their football away and decided that the people who passed the test would not get the jobs they took the test to win. I really don't see why that is such a difficult thing to see but I realize that those who want to cry discrimination will not see it no matter what you do. Apparently you are one of them.

[Preved]

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