Barry, today's Supreme Court decision in Ricci v. DeStefano is sure to be a hot topic at the upcoming hearings for Supreme Court nominee Sonia Sotomayor. The Court reversed a Second Circuit decision that was joined by Judge Sotomayor.
In Ricci, 17 white firefighters and one Hispanic firefighter filed suit against the City of
The district court granted summary judgment to the City, and Judge Sotomayor joined an unsigned summary opinion affirming the district court's decision. By a 7-6 vote, the Second Circuit declined to hear the case en banc. Three days before the Second Circuit issued its denial of rehearing en banc, the three-judge panel that included Judge Sotomayor withdrew its summary order and filed a per curiam opinion adopting the reasoning of the District Court.
The Supreme Court reversed by a 5-4 vote, holding that a race-based action like the City's violates Title VII unless the employer can provide a strong evidentiary basis for concluding that it would have been liable under Title VII if it had not taken that action. The Court concluded that the City could not meet this standard.
Justice Alito's concurring opinion stated: "The dissent grants that petitioners' situation is 'unfortunate' and that they 'understandably attract this Court's sympathy.' Post, at 1, 39. But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them."
While the dissenting opinion disagreed with the majority's analysis, the dissent concluded that the lower courts (including the Second Circuit) had used incorrect analysis, stating "[t]he lower courts focused on respondents' 'intent' rather than on whether respondents in fact had good cause to act. . . . Ordinarily, a remand for fresh consideration would be in order."
The Court's rejection of Judge Sotomayor's legal position in Ricci--and in several previous cases--highlights the need for the Senate to closely examine Judge Sotomayor's views on the Constitution, the rule of law, and the proper role of a judge. For example, does she share Justice Alito's view that sympathy for a particular party is not a proper basis for considering cases, or does she agree with President Obama's statement that "empathy" for particular parties is a key quality a Supreme Court nominee should have?
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Dear Boris,
Have you been to Disney World? There are no strip mines or oil wells there, and the developments have been held at a distance. Asians, Europeans, Brazilians and Americans of every color flock there year after year.
Funny, not one penny of your tax dollars is spent keeping it up, and it had no geysers, only swampland, when Disney turned it into a goldmine. The gummint, on the other hand, can turn every silk purse into a sows ear, taxing everyone, favoring whites, losing money.
Jimbino,
The parks aren't for white people. They're for the bears, mountain lions, ants and other animals to live in. Do you know how much scientific research goes on in the massive parks? Apparently not.
In a principled defense of the New Haven position, Tim Wise (www.timwise.org) claims that:
"It is the city's position, amply documented in the record, that the tests on which Ricci and the other plaintiffs did so well, and on which blacks did so much worse, were invalid indicators of ability. As such, throwing them out did not amount to sacrificing standards, and did not deny Ricci or the others anything to which they were morally or legally entitled. To be promoted on the basis of a flawed exam is not a right, philosophically or constitutionally, that either Ricci or any other person can claim to hold.
"That the city concluded the test was flawed is critical here, because it suggests that tossing out the scores was not merely a pretext for racial discrimination against the white firefighters. This is ultimately the Constitutional issue at hand, which the Court is being asked to decide, and which two previous courts have decided in the city's favor.
"Rather, New Haven's actions were based on a determination that the standard being used was inadequate to the task of picking those who would make the best supervisors, and that if they used it, they might be subjected to a successful lawsuit under Title VII of the Civil Rights Act. Under the law, policies that have a disparate racial impact are prohibited, unless those policies can be deemed directly related to job performance. Because they felt the test might not be defensible on those grounds, the city threw out the results. But this decision was about test validity, rather than being based on a desire for racial balance as some larger social goal."
If this is the case, then it appears that Judge Sotomayer's decision was the correct one and that the Supreme Court got it wrong this time.
I haven't read the Court's decision yet, so I'm still open to hearing to their reasoning.
Either way it was a close 5/4 call. It's not like Sotomayer's ruling was reversed 9-0. Everyone knoiws what this is really about. If Sotomayer is appointed, some conservatives are concerned that a lot more of the 5/4 votes are going to go the other way. If the court wasn't stacked 7/2 on the conservative side, there wouldn't be half the split decisions there are currently, where GOP appointees have to vota against their sponsors because their consciences won't allow otherwise...
Wow, is Sekulow's response lame!
I am a strong supporter of affirmative action - certified, in fact,
but I agree with the majority of the Supremes in this case that its wrong for New Haven to burden the employees who successfully performed on New Haven's shitty test! Having given the crummy test, New Haven should have to take their medicine for their own poor management performance and promote the white firefighters AND ALSO pay the price of finding other, additional ways to promote the qualified minorities whom the test unfairly failed.
Or else pay the price of the subsequent suit by the discriminated -against minorities!
Why do so many people act as if that's SO hard to understand!
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