The New Haven Firefighters

Joe Klein:
.
I'm fine with this, too. We may imagine that certain justices had scurrilous motives or reasons for reaching this decision, but the bottom line is that (thankfully) merit is of a higher value than diversity in our culture, and if we are to err, it should be on the side of merit.

It would be intriguing to read the dissenting rationale on the matter...

Joe, I think you over simplify a bit. There are three issues here: "fairness", empathy, and the law. I think Joe Sudbay has it right on this one:
.
This decision will be the focus of a lot of spin today and for the next several weeks. Republicans have been looking for a line of attack on Sotomayor -- and may try to make this case a bigger issue. As far as I can tell, Sotomayor and her colleagues on the Court of Appeals were following precedence in their decision. Today, the Supreme Court changed the precedent and the interpretation of federal employment law.

The right result may have been reached, but one wonders how much we would have heard about "legislating from the bench" if:

a) It had been black fire-fighters bringing the case

b) The Supreme Court had a liberal majority

wvng
~
The city of New Haven admitted that its policy stemmed from a fear of lawsuits by minority firefighters. Anthony Kennedy stated "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." This is absolutely reasonable.
~
Joe Sudbay also said:
"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."
~
Is that problematic for you?

Two reactions: 1. The firefighters who passed the exam should get their jobs.

2.Judicial Activism: It's ok if it puts things right. The argument that judges don't make law is bogus. They establish a lot of precendents that influence subsequent interpretations.

Well the hypothetical litigation from the black firefighters wouldn't just drop out of the sky-- it'd allege that the test was discriminatory, and/or didn't measure relevant ability. Did the Court look into the validity of the test, or just whether the town's decision not to use the test was permissible?
-
As far as Sotomayor, three things: (1) she voted with the majority here, didn't write the opinion. Nothing remotely troubling about that. (2) One of the plaintiffs (who she voted to rule against) was Hispanic. (3) The public argument against her decision was grounded entirely in empathy, for the white plaintiffs.
-
That's reason and logic, though. Surely, the right wing will bark its head off about this for weeks, and maybe until she retires. Oh well.

[...] Joe Klein in [...]

Bitter:

Agree. Evidently, for some, activism is OK if you like the particular activity, and respect for precedent is a bad thing if you don't like the precedent. Otherwise, not so much.

On the substance of the decision, I'm inclined to agree we're for truly equal opportunity, not necessarily for a guarantee of equal outcome. I'm not sure I trust Clarence "Uncle" Thomas to fairly assess the former for anyone other than himself, though. Gotta read the opinions – and then ignore the way they'll be distorted by the various zealots.

O/T – completing the trifecta –

Billy Mays dead at 50. Hypertension-related (you think?) We return you now to your normal programming volume.

" ..Diversity is a great American strength. Fairness is too..."
Is empathy a "great American strength" too? An the self-awareness too?

If so, then let us modify that:
"The pursuit of diversity is a great American strength. The pursuit of fairness is too."

For 25 years, the United States Court of Appeals for the Second Circuit gave employers broad discretion to reconsider a promotion test whose results favor one race over another. Judge Sotomayor followed precedent when she rejected the firefighters' claim of reverse discrimination in the now-famous Ricci v. Destefano case, as she is obliged to do as a lower-court judge. Yet, as the Justices showed in today's 5-4 decision in Ricci, they are not bound by the same constraints that bound Judge Sotomayor. Today's ruling creates a new standard which says that an employer's decision to toss out a hiring test must have a “strong basis in evidence” showing that the test preferred one race over another. The Supreme Court has powers that Judge Sotomayor does not, and it used that power today. Unfortunately, conservatives will try to use today's decision to attack Sotomayor, but these attacks have no basis. Sotomayor followed the law that was in place at the time of her decision in Ricci, and she should be commended for demonstrating proper judicial restraint.

It is not fair to offer a test and then decide, simply on the basis of race, that you don't like the results and toss them out.
.
Congratulations, JK, you may now join the millions of Americans (or at least thousands) who will discuss this case in the coming days without the slightest clue of what it was about.

Hey exiled. No hay problema. I have no issue with the Supreme court making new law by fixing something that should be made right. Scott Lemieux had an anticipatry post on this decision:
.
So if, as expected, the Court hands down its decision in Ricci today and reverses the Second Circuit, let me say that this in no way shows that Sotomayor was "wrong" on the law. First, because the Supreme Court can create new law in way that Circuit Courts can't. And, second, because cases interesting enough to make it to the Supreme Court generally admit to multiple reasonable interpretations, and New Haven's belief that civil rights law did not allow it to use a test that would disproportionately promote white people unless it could show a much stronger relationship between the test and job performance was certainly plausible, and a legal position that obtains 3 or 4 Supreme Court votes in particular cannot usefully be said to be "wrong."
.
And ditto what gunny said.

Just to be devil's advocate, doesn't this strike down all affirmative action? In other words, didn't New Haven say "OMG, we can't let this stand because there isn't an adaquate minority 'mix' and we're going to get called on it". The Supreme Court said "No, New Haven, you can't adjust your hiring because you can't fill positions with minorities. You can't restructure the test and 'redo'. You have to go with the results in this case".
-
Another related issue might be a detailed study as to why the minorities failed the test. I'm sure it's not a simple answer but as a case study it would be valuable to know and apply what's learned to a bunch of other existing and probably common situations.

Sotomayor tried to bury a case that took 93 pages of SCOTUS opinions to deal with. And she got it wrong to boot. She shouldn't be a judge in traffic court, let alone even the Second Circuit. You see, gunny, the issue was not Sotomayor's conclusion, but her decision to bury the case, thereby appearing to influence the case's chances of being appealed.
.
And I don't think Sotomayor followed the law anyway--resolving this case on summary judgment was pretty weak.
.
By the way, and I haven't digested the full opinions, isn't Kennedy's conclusion that New Haven is now insulated from a suit from black firefighters consistent with the idea that they should have joined the suit? I know there was a statute passed in response to Martin v. Wilks. Does the statute cover this instance?

And square1, the decision by New Haven was race-based. That triggers judicial inquiry.

vwng, that presupposes that the 3 or 4 were reasonable. But in any event, the issue with Sotomayor is her burial of the case, not the result she reached.

A hypothetical:
.
Suppose Time magazine has a test they administered to employees before they promoted them to be Swampland bloggers. However, many of the questions on the test are not particularly related to D.C. politics or journalism. They are arbitrary and comical. Questions like, "Name all Michael Jackson's siblings?" or "What was Jay-Z's last record?"
.
As it turns out, the results of the test favor younger African-Americans. In fact, Joe Klein does not pass. He gets very grumpy and makes thinly veiled threats of racial and/or age discrimination.
.
Suppose that management at Time.com says "Holy crap, that was a stupid test. It doesn't accurately test for who would be a good political blogger and if Klein sued us for racial and/or age discrimination, we might lose. Let's redesign the test and we will both avoid a lawsuit and get a better pool of qualified bloggers."
.
Now imagine that the young, african-american bloggers who outperformed Klein sued Time.com because they wanted the test to count, even though they would still be eligible to be hired if they scored best on the revised test.
.
Finally imagine that Thomas, Scalia, Roberts, Alito and Kennedy said that Time.com was Constitutionally prohibited from revising its test.

Do you remember those words "All men are created ... life, liberty and pursuit of happiness"? That, of course, was a not a statement to be, say, taken to the bank by ANY MAN living in America's colonies ...

And indeed, the POTUS statement that 'we' "respect Iran's sovereignty and would not interfere in its affairs" should be understood to be manifest "Words, Just Words".

Congratulations, JK, you may now join the millions of Americans (or at least thousands) who will discuss this case in the coming days without the slightest clue of what it was about.
.
square1, well said.

So what happens here? Is it that Ricci et al get their promotions back or that they get to go back to lower court and sue? Because if it's just that they can sue over it, we may be making too much of this precedent and it's our summary judgment system rather than our affirmative action practices that need another look.

square1, first of all, check out Scalia's concurrence
.
Second of all, your hypo is silly, and I think you know it. Fire science isn't the same as obvious racially-biased questioning. You clown yourself with silly hypos like that.

spob, you are a fool. As Glenn Greenwald noted: "Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It's perfectly reasonable to argue that she ruled erroneously, but it's definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe."
.
resolving this case on summary judgment was pretty weak.
.
On this, I actually agree with you to some extent. In general, federal courts are way too quick to decide discrimination cases, which are inherently fact-intensive, on summary judgment. However, there is a term for judges who are predisposed to siding with employer-defendants against employees alleging discrimination: conservative judges.

square1:
.
...many of the questions on the test are not particularly related to D.C. politics or journalism. They are arbitrary and comical. Questions like, "Name all Michael Jackson's siblings?" or "What was Jay-Z's last record?"
.
Is the hypothetical a hypothetical, or is it meant to be related to the facts in this case?

"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.

When you posit that hypothetical Swampland managers would say

"Let's redesign the test and we will both avoid a lawsuit and get a better pool of qualified bloggers."

, you specifying a premise that directly contradicts the facts in the case, at least as found to be so by Anthony Kennedy.
.
The possibility that the test was flawed in a discriminatory fashion (deliberately or not) doesn't seem to have necessarily entered into the redesign decision. The purpose of New Haven's reconsideration was solely that the test (as it was composed) produced a result that may have prompted a lawsuit. The Court found that the possibility of a lawsuit isn't by itself sufficient cause to throw out the results of a test, not that a discriminatory test isn't sufficient cause for a do-over.
.
I think that it's a good hypothetical, we should all try to answer it ourselves, because we will encounter decisions that must be made between competing priorities, and we will be forced to choose -as we should. But if the hypothetical is meant to demonstrate something about the case in question, then either you or Justice Kennedy have gotten the facts wrong.

square1, do you have problems reading the English language?
.
I wrote in two posts that the issue was not Sotomayor's result--although it was wrong (ipso facto), but rather the decision to non-pub the case. So how does criticizing that make me a "fool". I suspect the real reason you are calling me a fool is that I call you out on your ridiculous hypo.