The New Haven Firefighters

Joe Klein:
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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:
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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
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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.
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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.”
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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?
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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.
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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.
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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:
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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.”
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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”.
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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.
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And I don’t think Sotomayor followed the law anyway–resolving this case on summary judgment was pretty weak.
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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:
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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?”
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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.
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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.”
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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.
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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.
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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
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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.”
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resolving this case on summary judgment was pretty weak.
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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:
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…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?”
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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.
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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.
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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?
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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.

Is spob of all people trying to discuss a legal case? What next – earthworm discusses rocket science? Where is pirate wench when we need her? Yarr!

sz, the hypo really isn’t that good–on its face, it’s biased . . . .
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in any event, check out Scalia’s concurrence. He neatly sums up the problem.

ah junius, perhaps, since you’re so brilliant, you could explain what I am talking about by my reference to Martin v. Wilks?

This is from Ginsburg’s dissent: In so holding, the Court pretends
that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.
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That does seem dishonest.
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Reading her dissent – I haven’t read any of the majority opinions – the test does seem highly flawed. It seems problematic to force New Haven to stand by test results that caused a massive under representation of minorities and are not a particularly accurate indicator of the skills needed by these firefighters.

spob Says:
Monday, June 29, 2009 at 1:20 pm
ah junius, perhaps, since you’re so brilliant, you could explain what I am talking about by my reference to Martin v. Wilks?

spob,as usual, you have selected a random case that you don’t understand in order to appear as if you have some knowledge of the legal system. It’s your usual modus operandi and coupled with your shrill extremism, intellectual dishonesty, and excessive hyperbole makes you tediously predictable. So yes, I can explain you. Not that there was much to explain, but still…

Rose:
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That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used.
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It seems as if our “impartial umpires” who just “call them like they seem them” that sit on our highest Court in judgment of us all can’t agree on what are the basic facts in the case.
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That’s pretty astounding, actually.

then do it, junius . . . . and I am not asking you to explain the case, just what I am talking about

“the test does seem highly flawed”
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Why, because of the results?

spob, I’ve already explained you. Or did you have trouble with the long words and complete sentences?

You know, the more I read spob’s amazing insights, the more I appreciate Dan Ayckroyd’s counterpoint to Jane Curtin. Perhaps Dan’s quote should become the standard first line to every spob-response.

Rose:
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From a press account of the facts in the case:

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964.

That seems to fit Kennedy’s version of the facts.
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Here’s another:

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.
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“The city could be liable for disparate-impact discrimination only if the examinations were not job related” or the city failed to use a less discriminatory alternative, Kennedy said. “We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects.”

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Ginsburg, according to this report, says something additional to what you have noted:

But Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.

So she’s essentially saying that the results and the history of the department are the evidence required to assume that the test was flawed and discriminatory, not an examination by the city of the test itself.
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Either the press account is wrong, or the city did exactly what Kennedy says that they did: they didn’t even try to look at the test to determine its flaws, they just looked at the results and were afraid of lawsuits that might result in opinions like Ginsburg’s.

Spob, you are a fool because you repeatedly assert that Sotomayor “buried” the decision when the panel adopted the reasoning of the District Court. It is a statement that displays an embarassingly poor grasp of appellate procedure. Furthemore, the implication made by you — and made explicitly by other wingnuts — was that the panel didn’t write an opinion because affirming the District Court was so indefensible on the merits that Sotomayor literally could not have crafted such an opinion.
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As Greenwald said, it is one thing to disagree with the Second Circuit on issues that I (and Scalia, apparently) would acknowledge are legally difficult to reconcile. It is another to, moronically, say that the Second Circuit’s conduct demonstrates that Sotomayor “shouldn’t be a judge in traffic court.”

mrtoads, I think pirate wench generally does a good job of responding to flob on a level the creature understands…

Square1
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Do you have any actual knowledge of the questions that would suggest they were race-specific? Or is this simply, in the most irrelevant manner, a hypothetical?
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Is a flawed test synonymous with one that would inherently promote more Caucasians than minorities? Is it beyond plausibility that those minority candidates who failed the test simply were not great firefighters? If the test were, in fact, racially directed, how can that be reconciled with the minority candidates who did in fact pass the exam?
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The passage rate for the Captain exam was: 16 (64%) of the 25 whites; 3 (38%) of the 8 blacks; 3 (38%) of the 8 Hispanics
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The passage rate for the Lieutenant exam was: 25 (58%) of the 43 whites; 6 (32%) of the 19 blacks; 3 (20%) of the 15 Hispanics.

square1, the issue is not the adoption of the district court’s reasoning–courts can legitimately do that, and they do it with some degree of frequency–the issue is whether the reasoning for the decision would have been “precedential”, and I think it beyond plain that it would have, since the US Supreme Court swelled the US reporter by 93 pages to resolve the case.
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By the way, I have NEVER stated that Sotomayor could not have crafted an opinion. My problem is that she (note, if you read Second Circuit rule 32.1, you’ll note that the non-pub decision has to be unanimous, so it’s her call) clumsily tried to make a precedential case go away (i.e., less likely to be reviewed) by non-pubbing it when by all rights the reasoning should have been published. That’s demonstrably unfair to the litigants, and when a judge acts like that, I simply think they no longer need to be judges. (By the way, I despise judges who don’t play fair, and there are a lot who do not–mostly on the state level, and I don’t care if they are conservative, liberal, moderate or whatever.)
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I am also not sure that Sotomayor’s disposition of the case is consistent with the four dissenters. If you look at footnote 10, Ginsburg seems to say that she thinks that the case should have been remanded. That would make Sotomayor wrong to grant SJ, and that would be 9-0.

Spongy –
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Go F yerself!
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Be ye happy now, junius ?
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Arrgh!

junius, it’s painfully obvious you cannot explain why I have referenced Martin v. Wilks, and the case from the standpoint of civil procedure is important.

you know, PW, your response would be cute–but we all know that you couldn’t come close to debating me on this point (or any other, by the way), so you trot out your foul-mouthed response (not that I mind that). It would be a lot more effective if you simply made some sort of argument, and then told me to f myself, but you cannot. People like you rarely find until they feel.

SZ: The law (before today) said that when an employer’s hiring policy has a disparate impact on a racial group, the employer may not use the policy if there is a less burdensome alternative. The law does not say that you can’t have a test that has a disparate impact on a racial group, but that the test has to be reasonably related to the job.
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What appears to have happened in this case was that after New Haven got complaints about the results of the firefighter test, the city took a second look at their exam and realized that it wasn’t sufficiently tailored to the job (i.e. it had questions analagous to “What was Jay-Z’s last record?”). The city then realized that a better test could be crafted.
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Here’s the key, SZ, the city wasn’t arguing that a better test would necessarily have less disparate impact on minorities. In fact, the impact might be even greater. Rather that a better test could survive a lawsuit because it would be specifically tailored to the job duties of the applicable firefighter positions.
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What appears to have been fatal to the city’s argument was that they didn’t have enough actual data about alternative tests. The city acted based on conjecture and common sense, not detailed studies.

Pirate Wench *terrorist fistbump for you*

spob, you’ve achieved your usual train-wreck on here through bad logic and obvious hatred of Sotomayor. You don’t know anything about how cases are handled at different levels, and your ignorance is showing with embarrassing clarity. In sum, you ought to quit standing on your head while trying to have a p*ssing match with others.

Exile: Good questions.
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Is a flawed test synonymous with one that would inherently promote more Caucasians than minorities?
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No. A test that has a disparate impace is not inherently “flawed”. It simply triggers a closer analysis that the test isn’t arbitrary.
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Is it beyond plausibility that those minority candidates who failed the test simply were not great firefighters?
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No. In fact, let us assume for the sake of argument that the african-american candidates were unqualified and would failed any exam. If the city revised the test and designed it to better test the skills and knowledge necessary for a firefighter leadership position, the african-american candidates would still have failed. So how was Ricci harmed?
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The real question is whether an employer is permitted to go through a disparate impact analysis in order to devise a better policy without a minority employee suing for the relief.

First of all, junius, it’s simply impossible to defend the non-pubbing of the case. That’s really what I take issue with, not Sotomayor’s result. And no one here really can. The case obviously was an important one, and therefore should have been published.
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Second of all, given what passes for discussion around here about the GOP, I don’t think my “judge of a traffic court” is really all that problematic. The bottom line is that she clumsily tried to bury a controversial case so as to make it less likely to be reviewed. That’s not a judge making an honest mistake–it’s a judge out to screw a litigant. When a judge does that once, I believe her unfit for office.
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Square1, your gullibility is amazing. First of all, it’s highly unlikely that any of the questions on the test were of the “What was Jay-Z’s last record” variety. If it were, then it would have been front and center in Ginsburg’s dissent. Second of all, do you always swallow whole an interested litigant’s assessment?
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Finally, it’s interesting to look at Ginsburg’s footnote 10. What that seems to suggest is that the dissenters thought that this case should simply have been resolved by remanding. That would mean that NO Justice bought Sotomayor’s disposition of the case.

http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf
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In case anyone wants to read the decision.

Joe,
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Kindly read Justice Ginsburg’s dissent.

sqr1:
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The law (before today) said that when an employer’s hiring policy has a disparate impact on a racial group, the employer may not use the policy if there is a less burdensome alternative. The law does not say that you can’t have a test that has a disparate impact on a racial group, but that the test has to be reasonably related to the job.

Would you mind terribly linking to case law that supports this claim, so that I might evaluate the bases of this statement?

What appears to have happened in this case was that after New Haven got complaints about the results of the firefighter test, the city took a second look at their exam and realized that it wasn’t sufficiently tailored to the job (i.e. it had questions analagous to “What was Jay-Z’s last record?”). The city then realized that a better test could be crafted.

This account of events of yours seems to be in direct contradiction of the AP’s (not that the AP is the gospel):

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

So when you say that “What appears to have happened in this case” was that “the city took a second look at their exam“, that claim doesn’t seem to fit available facts.
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Would you mind linking to an account that supports your claim that the city re-examined the test itself, so that I can better understand why you would say that this “appears to have happened“?

the city wasn’t arguing that a better test would necessarily have less disparate impact on minorities. In fact, the impact might be even greater. Rather that a better test could survive a lawsuit because it would be specifically tailored to the job duties of the applicable firefighter positions.

Again, I’d just like to know (via links and quotes) how you’ve come to this conclusion. You’re right according to Kennedy, in as much as the city wasn’t arguing that they needed a better test, but that’s not really “key”, is it? They didn’t say that they needed a better test in order to avoid discriminatory disparate impact as a matter of fact, according to Kennedy, they claimed they needed to redesign the exam solely to avoid litigation that tested compliance.
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According to the AP, the city doesn’t know what’s wrong with the test. When you claim that they do know what’s wrong with it, i.e. that they wanted to create a new exam that “would be specifically tailored to the job duties of the applicable firefighter positions“, where are you finding evidence that the city knew at the time that the problem was “tailoring”, or any other specific flaw, for that matter?
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Thanks so much in advance for providing evidentiary support, sqr1.

spob Says:
Monday, June 29, 2009 at 2:20 pm
First of all, junius, it’s simply impossible to defend the non-pubbing of the case. That’s really what I take issue with, not Sotomayor’s result. And no one here really can. The case obviously was an important one, and therefore should have been published.
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Not true, The only reason anyone noticed this case was simple: it gives the hard right a chance to yell idiocies about Sotomayor. Per se, it’s hardly remarkable, especially when you consider that the way Sotomayor et al. handled it was to take a fairly straight reading of the law.
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Second of all, given what passes for discussion around here about the GOP, I don’t think my “judge of a traffic court” is really all that problematic. The bottom line is that she clumsily tried to bury a controversial case so as to make it less likely to be reviewed. That’s not a judge making an honest mistake–it’s a judge out to screw a litigant. When a judge does that once, I believe her unfit for office.
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The truth here is that if Sotomayor had found for the litigant, you would have immediately howled about discrimination against whites, and thrown in a certain amount of stupidity about legislating from the bench. And your obvious legal ignorance makes you unfit to judge anything. The judge affirmed the law. Whether the law is a good or desirable one is another matter. But you don’t care about this – you just want to personalize the whole matter – which is a profoundly anti-legal approach, and speaks volumes about your character and capacity to judge.
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Square1, your gullibility is amazing. First of all, it’s highly unlikely that any of the questions on the test were of the “What was Jay-Z’s last record” variety. If it were, then it would have been front and center in Ginsburg’s dissent. Second of all, do you always swallow whole an interested litigant’s assessment?
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You should learn to distinguish between an obvious hypothetical and a statement of fact, spob. I realise you don’t want to, but until you do, you will make no progress as an analyst of issues, and none as an analyst of law. Second, given your track record of parroting misunderstood talkingpoints, you are in no position to make accusations about swallowing things whole.
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Finally, it’s interesting to look at Ginsburg’s footnote 10. What that seems to suggest is that the dissenters thought that this case should simply have been resolved by remanding. That would mean that NO Justice bought Sotomayor’s disposition of the case.
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The point here is that the Sotomayor court basically followed the law in its decision, as it understood the law to require. It did not bar an appeal, nor did it attempt to remake the law. As such, it followed the correct procedure, as you should be well aware. If the SCOTUS wishes to re-interpret the law in this area, that’s a different matter entirely. The Supreme Court may not have agreed with the disposition, but it does not follow that Sotomayor was wrong as the law stands, simply that the level of her court is one with more limited powers. This is why cases are appealed to higher courts. Furthermore, it is hardly unusual for higher courts to take a different line, and Sotomayor’s record in this area is not a bad one at all. If you actually knew or cared about legal matters, you would know this.

SZ: Sorry but I don’t have much time. Not trying to be obnoxious but I can’t provide any links right now. You can probably do a quick google search to find an explanation of “disparate intent” and what is satisfactory under Title VII. You can also check the EEOC website. No doubt lots of material there.
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WRT, problems with the test, I would look at the original District Court decision and Ginsburg’s dissent.

I won’t be here long since the troll rules some people’s world.
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But I find it so very interesting that Joe Klein does a post about the Ricci decision that has absolutely nothing to do with the Ricci decision. It has to do with what he himself thinks SHOULD have been the outcome of the case without any legal reasoning behind it. Well I am so glad that the Supreme Court made you feel better Joe Klein but next time at least put in the tiny bit of effort it takes to either speak to a lawyer who has reviewed the ruling or better yet read the damn thing for yourself and at least give your audience a clue what the conservative Justices’ arguments were for overturning the lower courts’ ruling and what the liberal Justices’ arguments were in dissent.
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It really isn’t that hard.
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BTW Ginsberg’s dissent is the awesome and she smacked up Alito’s concurrence as well.
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Links
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http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf
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http://www.prospect.org/csnc/blogs/tapped_archive?month=06&year=2009&base_name=rebuking_alito

sqr1:
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Thanks for the response; I completely understand your constraints.
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Rather than waste my own time looking for facts that may not exist, i.e. that would resolve the discrepancy between your claim

“What appears to have happened in this case was that after New Haven got complaints about the results of the firefighter test, the city took a second look at their exam and realized that it wasn’t sufficiently tailored to the job (i.e. it had questions analagous to “What was Jay-Z’s last record?”). The city then realized that a better test could be crafted.”

versus the Associated Press’ claim

“The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.“

, I will try to suspend judgment until such time as facts are available (from you or any other commenter) that support your account of events.

Oh and what are the odds that Spob and the rest of the wingnuts will as be outraged about summary judgment being granted in favor of Ricci, et al.? Wasn’t this a fact-specific case that cried out for a trial? When the white firefighters win, not so much.

maverick, you obviously have no idea what you are talking about. Most appeals court decisions are not important in that people will talk about them, but that’s a wholly different issue from whether the case is important from a precedential standpoint. This case obviously is, and the reasoning, right or wrong, should have been published.

Second of all, maverick, the law is not straightforward at all. If you read Kennedy’s opinion at 21-22, you’ll see that the discriminatory intent/disparate impact has a good deal of tension. Thus, it’s very difficult to say that Sotomayor’s decision is “straightforward”, and that makes it even less justifiable for her to bury the case by non-pubbing it. And Sqaure1, you may want to read that portion as well–you only tell one side of the story–disparate impact without dealing with discriminatory intent, and the law has always been clear that you cannot intentionally discriminate and cover that up by saying that you don’t want to run afoul of the disparate impact provision.
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I forget what commenter cited Greenwald in stating that 11 of 21 judges agreed with Sotomayor. First of all, the 7-6 vote was not on the merits, but rather whether to rehear en banc, and it is certainly possible for a judge to vote to deny rehearing en banc, yet disagree with the disposition of the case. Moreover, it’s hard to count the four dissenters in the Supreme Court case as firmly in Sotomayor’s corner, as they seemed to state that a remand should have been the way to go–see FN 10.
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maverick, you clown yourself by yapping at me about the Jay-Z hypo. No one really is arguing that New Haven intentionally discriminated against the minority firefighters. And no one is arguing that the questions are obviously culturally biased (like the Jay-Z question), so the hypo is silly. If the questions were obviously biased, then Ginsburg et al would have pointed them out, and the City would have done more than argue the statistics.
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“The point here is that the Sotomayor court basically followed the law in its decision, as it understood the law to require.”
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I have no idea what to make of this. If Sotomayor was wrong to affirm the grant of summary judgment, she didn’t follow the law, and no Justice on SCOTUS will say that she did. As for the “as it understood the law to require”, are you saying that as long as the court thinks it’s doing what’s right it’s all good?
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Of course, you’ll note that I really don’t criticize Sotomayor’s result. I criticize the non-pub burial.

sqaure1, I was actually kind of surprised that there were the votes to decide the case–i figured it would get punted. The Court decided, it seems to me, that there was obvious discriminatory intent–and once that decision was made, the judgment follows. If the Court were deciding this on Equal Protection, summary judgment would have been appropriate–not sure how appropriate it is on Title VII. The Court appears to borrow from Equal Protection when it cites Croson.
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So now are you admitting that Sotomayor’s SJ was inappropriate, as Justice Ginsburg’s footnote 10 suggests.

spob, the case is not important from the point of view of precedent, and you offer no reason to think that it should be. This isn’t a landmark case at all. The only reason it interests you, given your lack of legal knoweldge, is that you can show your usual racism against Sotomayor. The only reason that the SCOTUS reached a different decision was that it widened the scope of precedent, as Sotomayor and her colleagues could not do. That doesn’t in itself make the case or Sotomayor’s role in it controversial or even important. Thus, the reasoning need not have been published, and your conspiracy theories are simply witless babbling. Furthermore, given your ridiculous hyping of the reversal, let’s remember that ALL of the SCOTUS judges were reversed before getting to the Supreme Court. That’s simply a fact of life. In the end, this case comes down to Kennedy’s swing vote, which is a pretty slim margin.
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No, Sotomayor did not violate the law, as you try to suggest. I realize that you don’t understand this, but that Sotomayor was reversed does not mean that she broke or failed to follow the law. No serious legal scholar would take such a position, and your attempt to do so is simply typical of your mental laziness and overall dishonesty.
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As for the hypothetical you are being dishonest about, you were pretty happy to take it literally earlier. I realize your reading skills are limited, and your short-term memory of your own positions is inadequate, but the rest of us are not so handicapped.

spob:

So now are you admitting that Sotomayor’s SJ was inappropriate, as Justice Ginsburg’s footnote 10 suggests.

Footnote 10 does not suggest that the appellate court’s affirmation of the decision of the district court was wrong. In fact, it says the opposite.

The lower court focused on respondents’ “intent” rather than on whether 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 a final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”

“…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.”
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And you and Joe Klein are absolutely certain that the test measured merit and nothing more. Well, you must be right, the other white guys (and the reliable Justice Thomas) all agree with you.

Part of the problem here is that spob simply doesn’t understand what precedent means or what it involves. For the record,since Sotomayor and colleagues affirmed the reasoning of the district court, they had no reason to publish their own separate reasoning. They considered themselves bound by 2nd Circuit precedent (discussed at length by the district court) and issued a summary order pursuant to 2nd Circuit Rule 32.1 that adopted the district court’s reasoning. The rule allows for summary orders when “no jurisprudential purpose” would be served by publishing a lengthy opinion. Thus, there is no conspiracy of silence here. It is solidly within 2nd circuit precedent not to publish an opinion when the decision of a lower court is affirmed. That is the reason for the non-appearance of the reasoning, not spob’s nonsensical conspiracy theory.
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As for the decision itself, first from the district and then the circuit court, the relevant cases are:

Bushey v. New York State Civil Service Commission, 733 F.2d 220 (2d Cir. 1984)

and

Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999)

spob, if you are going to cite precedents, try citing the relevant,specific ones.

sy2d, uh, “Ordinarily, a remand for fresh consideration would be in order.”
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That’s not a ringing endorsement of Sotomayor’s summary judgment decision in favor of New Haven, and nowhere (at least as far as my one read of Ginsburg’s dissent) in the dissent does it say that they would have affirmed the decision below. I agree (hence my equivocal language) that there’s the possibility that Ginsburg et alia would have agreed with the SJ disposition, but that’s a harder read, given that the dissent is only judging the merits because of majority’s resolution of the case.
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Junius, you are clowning yourself. The issue is not whether the Supreme Court “widened the scope of the precedent” (whatever the hell that means), but whether the issues raised in this case were weighty enough to be “precedential”, and I think it clear that they were. First of all, there were Equal Protection issues to be dealt with (which were mooted by SCOTUS’ decision in favor of Ricci), thus creating thorny issues about the interplay between Title VII and EPC. Second, how far an employer could go so as to preclude Title VII disparate impact litigation is one of importance to the legal community. Third, how much deference would be given to a City’s proffered justification is another important issue. Bottom line, the summary order burial, particularly when compared to other cases that get pubbed is just not defensible. Moreover, that the Supreme Court decided to take the case is pretty much conclusive evidence of the case being important. Thus, it should have been pubbed.
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Junius, I don’t know where you are getting your characterization of my comments here, but you’re off. Although it is somewhat important that Sotomayor got reversed, what I have focused on is the decision to non-pub the 2d Circuit decision. I find it a serious abuse–an attempt to harm the chances of the plaintiffs by making the case less likely to be heard on appeal.
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As for your claims about racism against Sotomayor, that’s just pathetic. Nowhere in here have I made a racist statement.
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As for the hypo, my point is that it simply is not germane to the case. That hypo dealt with an obviously culturally biased question–that was not the issue in Ricci.

Junius, since spob doesn’t understand what it means that the SCOTUS widened the scope of the precedent, I fear your efforts to educate spob are likely to be in vain. It’s abundantly clear that spob has no knowledge of the law, and is simply citing scuttlebutt from the usual rightwing gossip columns that pander to such debased individuals. As for his attempts to make something out of the non-publication of the reasoning, he clearly doesn’t know anything about the 2nd circuit, its rules, or its precedents. As for the silliness of trying to make this case significant because it went to SCOTUS, that really is nonsense. The various opinions on this case make clear that this is not a ground-breaking case. But of course, spob doesn’t want the facts. Conspiracy theorists seldom do.

maverick, this is getting tiresome. First of all, whether or not the District Court got it right is not the issue–the issue is the weightiness of the issues and whether the resolution of the issues would serve precedential purposes. So the issue is not whether the Second Circuit affirms by non-pub order–it does, but whether in a case of this case’s importance whether it should have. Second of all, those two cases DID not involve the junking of tests solely as a result of the race of the successful test takers–thus this case involved issues of first impression in the Second Circuit (see Jose Cabranes’ dissent from denial of reh’g en banc).

Basil, the funny thing is that spob seems to be trying to accuse the 6th Circuit Court of Appeals as well. Said court issued an unpublished decision in Oakley v. City of Memphis,(2008), rejecting arguments that the City of Memphis violated Title VII when it refused to act on promotion exam results that had a disparate impact on minority test-takers, citing the district court’s opinion in Ricci in support. But hey, I am sure spob will claim that they were covering for Sotomayor. Why should logic and evidence get in the way of his lunacy?

“The various opinions on this case make clear that this is not a ground-breaking case.”
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Most published decisions are not “ground-breaking”. That’s not the standard. This case was one of first impression (particularly if New Haven was going to win because the EPC issue needed to be dealt with). That made it publishable. And since the Supreme Court granted cert., it’s pretty hard to arge that the issues involved were not weighty enough to merit inclusion in the Fed 3d.

So we’ve come down to the bedrock. Why does this case matter? According to spob, it is so desperately important that the 2nd Circuit rules should be set aside, despite having been accepted for a century, and an unnecessary opinion published, even though said opinion would only affirm the district court’s opinion. In other words, it isn’t important, breaks no ground, and is only important to.. spob. Why does it matter to spob? For no legal reason. The only thing spob wants to do is attack Sotomayor. Since he has no legal reason for this, we have to assume some personal motive. The only plausible motive at this point is race. The facts here are that spob knows nothing about the law, is not qualified in it, and is trying to ginn up a conspiracy out of nothing. Ricci simply isn’t that important, and there is no conspiracy of silence. As you point out,basil, the 6th and 2nd Circuits both have decided cases using the district court on Ricci as precedent, and without publishing the reasoning. But then, spob just doesn’t understand what this means. Instead, we get posts by him/her full of sound and fury, signifying nothing.

Well, the Sixth Circuit screwed that one up too. If they’re citing the decisions in other circuits, then they are doing a disservice. I think one of the 6th Circuit judges on that panel was a Bush appointee, by the way. Of course, in the Sixth Circuit, non-pubbed cases can be cited, so the disposition is not exactly the same.

So now are you admitting that Sotomayor’s SJ was inappropriate, as Justice Ginsburg’s footnote 10 suggests.
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No. Sotomayor adopted the lower court’s legal analysis. Under that analysis, the Plaintiffs were required to show evidence that the reason for the discriminatory action by New Haven (i.e. avoiding disparate-impact liability) was pretextual (“intent”). There was no evidence of a pretext. SJ was warranted. SJ would have been inappropriate only if the District Court ignored evidence in the record that the action was pretextual.
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OTOH, granting SJ for a Plaintiff in a discrimination case is highly unusual. Much more unusual that granting SJ for defendant. Although the legal standard is technically the same (no material issues of fact), in reality, a defendant is invariably given a day in Court.
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Given that the SCOTUS changed the inquiry from “intent” to a actual good cause standard, if it was remotely conceivable that the the parties could have submitted additional facts regarding whether the disparate-impact liability concern was legitimate then the case should have been remanded. THAT is what Ginsburg was saying. That when you change the analysis, remand is proper to solicit any additional facts regarding the new analysis.
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Now that I have given my view, perhaps you would share your opinion? If SJ was “weak” when granted to defendant, is it still weak when granted to plaintiffs? If not, why not?

spob Says:
Monday, June 29, 2009 at 5:01 pm
Well, the Sixth Circuit screwed that one up too

You mean they made a decision based on precedent, as the 2nd circuit did, therefore rendering your conspiracy theory theory worthless? As for your reasoning, it’s getting sillier by the moment.
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Junius, I think you might have lost a line of text, since it was you who pointed out the 6th Circuit unpublished opinion. I’ve certainly lost some words, and occasionally a whole post. Still, we don’t want spob starting to manufacture another conspiracy out of nothing.

spob
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1. Sotomayor did not issue an order at the district court in Connecticut granting summary judgment in favor of New Haven. She affirmed the disposition below as part of a panel sitting on the Second Circuit.
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2. Justice Ginsburg’s footnote says that the lower court focused on respondents’ intent rather than on whether they had good cause to act, and the normal practice of the Supreme Court would have been to remand the case back to the district court to conduct the appropriate analysis.
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3. Given the fact that the Supreme Court determined not to adhere to normal practice, Justice Ginsberg writes that under the appropriate anaylsis New Haven (respondents) should have been the prevailing party.
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4. In plain english, Justice Ginsburg’s dissent, including footnote 10, says that the decision of the district court granting summary judgment in favor of New Haven and the affirmation of the appellate court were correct.

basil, I did lose a line, but no worries. Anyway, you’ve been doing sterling service thrashing the village idiot, so you probably deserve equal credit. It’s hard sometimes to proofread posts when your eyes are rolling at spob’s latest inadequacy. That line about the 6th getting it wrong too is simply hilarious. Could petulant whining go further? It’s like a child that lost a toy and is going into full tantrum mode.

junius, take a look at Second Circuit opinions–published ones affirm the District Court ALL THE TIME. The issue is the weightiness of the issues involved. I agree that where a Dist court is reversed, there is more likely reason to pub the case, but that’s simply because District Court judges are presumably good and if they get it wrong, it’s probably because the law’s application wasn’t so clear.
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But let’s look at what happened in Ricci. At first, there was a non-pubbed summary order. Then, right before the en banc denial, they pubbed the order and referenced the District Court’s decision. So they didn’t even stick to their position. Cabranes’ dissent nails it. It’s not that they were wrong–it’s that they tried to bury the case.

“It seems as if our ‘impartial umpires’ who just ‘call them like they seem them’ that sit on our highest Court in judgment of us all can’t agree on what are the basic facts in the case.”
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Shocking, isn’t it? It’s almost as if perfect unbiased objectivity were a myth. Or that facts depend at least partially on one’s perspective, background et al. From viewing the facts concerning the bombing of say Nagasaki to the facts say of two different witnesses to a traffic accident…. How is it that mono-meanings (i.e. facts) are so slippery, elusive, that what is retrieved from the churning river of interpretation is often so disparate.

sy2d, Rule 32.1 requires the non-pub summary order be unanimous. That makes it her call, since she had veto power. I have explained this in other posts.
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maverick, just about every decision is “based on precedent”. That doesn’t mean their suitable for being disposed of by summary order.
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As for the Sixth Circuit–remember, they can cite their non-pubbed cases, and there was an opinion issued by Sixth Circuit, so it’s a wee bit different. But where a federal court relies on out-of-circuit precedent, pubbing the case would seem to be the prudent thing to do.
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As for Ginsburg’s fn 10, your read is not so obvious. If SJ was appropriate for New Haven, why didn’t she just say so? She never says that Ricci didn’t create a genuine issue of material fact (at least as far as I can tell), she says something about “has not shown”–but that’s not really the standard. I don’t see how Sotomayor’s (or more accurately, the panel’s) resolution is at all heartily endorsed. Couldn’t Ginsburg, who obviously knew the procedural posture, have simply said that New Haven was entitled to SJ. She did not.

But spob, the only person who thinks this is weighty is you. That’s the core of your problem. You take a pretty run-of-the-mill case, ignore precedent, try and build a vast conspiracy out of it – and then look like a total idiot when you don’t know the facts. The 6th and 2nd courts both followed the district court, neither thought a published opinion necessary. There is NO conspiracy. You can’t explain why the 6th Circuit was also happy to take this line – and until you do so, you are running on empty.

first of all, junius, there’s a difference between a non-pub summary order with nothing stating what the case is about and non-pubbed opinion which can be cited as precedent in the circuit.
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Second of all, I’d say i was in pretty good company, Judge Jose Cabranes. Have you read his dissent from denial of rehearing en banc? So your “no one” characterization is full of it.
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Third of all, the Sixth Circuit didn’t change how it handled the case when it got hit with a rehearing request. Moreover, it’s painfully clear that the Sixth Circuit should not have non-pubbed the case. Also, it doesn’t appear that EPC was an issue in the Sixth Circuit case.
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Fourth of all, check out SCOTUS Rule 10. Note how the word “important” is used. Since they granted cert., the case was “important”.

sy2d, Rule 32.1 requires the non-pub summary order be unanimous. That makes it her call, since she had veto power. I have explained this in other posts.
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maverick, just about every decision is “based on precedent”. That doesn’t mean their suitable for being disposed of by summary order.
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As for the Sixth Circuit–remember, they can cite their non-pubbed cases, and there was an opinion issued by Sixth Circuit, so it’s a wee bit different. But where a federal court relies on out-of-circuit precedent, pubbing the case would seem to be the prudent thing to do.
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As for Ginsburg’s fn 10, your read is not so obvious. If SJ was appropriate for New Haven, why didn’t she just say so? She never says that Ricci didn’t create a genuine issue of material fact (at least as far as I can tell), she says something about “has not shown”–but that’s not really the standard. I don’t see how Sotomayor’s (or more accurately, the panel’s) resolution is at all heartily endorsed. Couldn’t Ginsburg, who obviously knew the procedural posture, have simply said that New Haven was entitled to SJ. She did not.

Wow, I think I just got Rick Roll’d.

sqr1, I think that once the court determined that the decision was race-based, then SJ is appropriate. I didn’t think that was going to happen . . . . i thought they all were going to remand. Perhaps, and maybe I am way off base here, but if Sotomayor gets confirmed, she cannot hear any further appeals of the case–thus the decision would be a foregone conclusion. I also am not sure of the Title VII, SJ, it seems to me that EPC SJ would have been appropriate, but Title VII is a little more of a stretch.

sqr1, I think also, you read too much into Ginsburg’s opinion. She obviously knew what the procedural posture was, yet she did not say that she would have affirmed the SJ grant.

spob, by the ridiculous standard you use, all the judges in the Ricci case had veto power (unanimous, remember?), so singling out Sotomayor is as usual inappropriate. What is your problem with her, rather than her colleagues, hmm?
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Second, Cabranes is one judge, not a majority. Yes, he got the case to SCOTUS, but the final result was, nonetheless, a very narrow decision, with plenty of acknowledgment of the difficulties in this area of the law. As we have tried to get you to grasp, the 2nd circuit followed precedent in how it handled the case.
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Third, it is NOT clear that the 6th Circuit was wrong not to publish.This is your unsupported opinion, and one which goes against precedent. You still haven’t explained how you find a vast conspiracy to bury the case in the decisions reached by two different Circuits. Or do you retract this claim?
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Fourth, you build this case up to such ludicrous heights that the word “important” hardly seems adequate. Nonetheless, by SCOTUS standards, this is and will remain run of the mill. You haven’t shown any reason to think otherwise. The only reason you care, given your ignorance of the relevant precedents, is that it lets you rant about Sotomayor. I think we know why you have such particular animus against her.

It amazes me that this was such a close decision. The policy for these types of things should be equal opportunity, not equal results. And speaking of empathy, it would be good for everyone here to read up on Ricci’s background.
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FlownOver: “I’m not sure I trust Clarence “Uncle” Thomas to fairly assess the former for anyone other than himself, though.”
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FO, please clarify what you meant by Clarence “Uncle” Thomas.

junius, my problem is with all three of them–however, they’re not all up for SCOTUS. (Wow, that was easy).
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As for Cabranes, well, that just proves that your “no one” was wrong.
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As for importance, do I think this case as important as every case that hits SCOTUS, no, but that’s not the standard for publishing a court of appeals case.
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As for precedent, yeah, the District Court cited precedent, but how does that distinguish the case from 99.9999% of cases where precedent is cited? They all do. And it’s not like the two cases cited, Bushey and Hayden were anywhere close to being on all fours. One of them even predated the statutory provision, and the other one was what, 9 years old. This was a novel issue.
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Finally, you fail to acknowledge the difference between the Sixth Circuit’s opinion and the non-pubbed summary order (subsequently changed. And you don’t acknowledge how the panel itself changed the disposition.
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And that the Sixth Circuit got it wrong, and it did, only shows that Sotomayor has some company.

I see, so the shorter spob is:

1) I only care because it involves SCOTUS, not on the merits.

2) spob likes point-scoring because he doesn’t actually have anything of substance to say

3) spob doesn’t even think this case really matters as far as SCOTUS goes, but will troll for hours anyway.

4) spob doesn’t care about precedent, but likes to yap about it anyway. Naturally, he doesn’t understand the relevant cases.

5) spob can’t deal with the collapse of a nonsensical conspiracy theory, so tries to talk down the 6th Circuit as well as the 2nd, and gets it wrong on those issues as well.

So, given these admissions, I cnclude that spob is a troll, with no knowledge of the law, an obvious fear and hatred of Sotomayor, and a racist who dare not acknowledge what actually motivates him. In sum, a hard-right headbanger without credibility or integrity.

junius, you are beyond stupid:

1) The issue of burying the case is what’s important here. Sotomayor made a decision to do that. That’s what bothers me the most. As for the merits, I’m not fond of them either, but courts have tough decisions and sometimes they get them wrong.
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2) As for precedent, the cases cited by the District Court were not on all fours, and as Cabranes said, the case involved issues of first impression. Sounds to me like the case should have been pubbed, and, oh by the way, the panel agreed, since they did pub the case later and in a manner that the Sixth Circuit could use it.
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3) I don’t see how I am wrong about any of this. A case with precedential value got buried–that impacted its likelihood of being appealed. That was wrong.

Here’s Powerline’s take:
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http://www.powerlineblog.com/archives/2009/06/023927.php

“It amazes me that this was such a close decision.”
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Not me. This is the 5-4 court.

Speaking of “facts”:
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“Stuart Ewen, whose books “Captains of Consciousness: Advertising and the Social Roots of the Consumer Culture” and “PR: A Social History of Spin” chronicle how corporate propaganda deformed American culture and pushed populism to the margins of American society, argues that we have a fleeting chance to save the country. I fervently hope he is right. He attacks the ideology of “objectivity and balance” that has corrupted news, saying that it falsely evokes the scales of justice. He describes the curriculum at most journalism schools as “poison.”
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” ‘Balance and objectivity’ creates an idea where both sides are balanced,” he said when I spoke to him by phone. “In certain ways it mirrors the two-party system, the notion that if you are going to have a Democrat speak you need to have a Republican speak. It offers the phantom of objectivity. It creates the notion that the universe of discourse is limited to two positions. Issues become black or white. They are not seen as complex with a multitude of factors.”
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Ewen argues that the forces for social change-look at any lengthy and turgid human rights report-have forgotten that rhetoric is as important as fact. Corporate and government propaganda, aimed to sway emotions, rarely uses facts to sell its positions. And because progressives have lost the gift of rhetoric, which was once a staple of a university education, because they naively believe in the Enlightenment ideal that facts alone can move people toward justice, they are largely helpless.
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“Effective communication requires not simply an understanding of the facts, but how those facts will take place in the public mind,” Ewen said. “When Gustave Le Bon says it is not the facts in and of themselves which make a point but the way in which the facts take place, the way in which they come to attention, he is right.”
~
http://www.truthdig.com/report/item/20090629_the_truth_alone_will_not_set_you_free/

So, given these admissions, I cnclude that spob is a troll, with no knowledge of the law, an obvious fear and hatred of Sotomayor, and a racist who dare not acknowledge what actually motivates him. In sum, a hard-right headbanger without credibility or integrity.
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You’re just figuring this out NOW?

gimme a break–the “troll” comment, given my defense of my position is pathetic. Sotomayor tried to bury a case and got the law wrong to boot.

Junius, I think yutsano is right. I’ve reviewed what spob has written here and on other threads, and it’s clear that spob has no sincere interest in debate, is grossly ignorant of the law, just wants to waste other people’s time, and is, in essence, a classic troll. I don’t intend to give the wretch any further attention, and I recommend that you ignore him from now on. Dirt off the shoulder.

sqr1:
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“The law (before today) said that when an employer’s hiring policy has a disparate impact on a racial group, the employer may not use the policy if there is a less burdensome alternative. The law does not say that you can’t have a test that has a disparate impact on a racial group, but that the test has to be reasonably related to the job.”
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Would you mind terribly linking to case law that supports this claim, so that I might evaluate the bases of this statement?
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stuart, this is another excerpt from Ginsburg’s dissent: “In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity.5 In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability
can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.”
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It’s a two strikes rule basically. Tests that produce disproportionate results in different races are okay. Flawed tests are okay. But disproportionate and flawed is not okay.
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The AP: The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.
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This is if not factually inaccurate, then very misleading. After New Haven discovered the racially skewed results, they referred the matter to the CSB (Civil Service Board) to determine whether the results could be justified on the basis of business necessity (i.e. if it was a good enough test). The CSB held a series of meetings, which Ginsburg summarizes, and concluded that no it could not be justified by business necessity. In fact there was some evidence to suggest that other tests which did not produce such racially skewed results were in fact better predictors of the skills needed by the firefighters. So the AP’s implication that the city saw the racially skewed results and just decided to throw them out is false.
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Here’s some excerpts from Ginsburg’s dissent: “These stark disparities, the Court acknowledges, sufficed to state a prima facie case under Title VII’s disparate-impact provision. See ante, at 27 (“The pass rates of minorities . . . f[e]ll well below the 80-percent standard set by the [Equal Employment Opportunity Commission
(EEOC)] to implement the disparate-impact provision of Title VII.”). New Haven thus had cause for concern about the prospect of Title VII litigation and liability. City officials referred the matter to the New Haven Civil Service Board (CSB), the entity responsible for certifying the results of employment exams.
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Between January and March 2004, the CSB held five public meetings to consider the proper course. At the first meeting, New Haven’s Corporation Counsel, Thomas Ude, described the legal standard governing Title VII disparate-impact claims. Statistical imbalances alone, Ude correctly recognized, do not give rise to liability. Instead, presented with a disparity, an employer “has the opportunity and the burden of proving that the test is job-related and consistent with business necessity.” CA2 App. A724. A Title VII plaintiff may attempt to rebut an employer’s showing of job-relatedness and necessity by identifying alternative selection methods that would have been at least as valid but with “less of an adverse or disparate or discriminatory effect.” Ibid. See also id., at A738. Accordingly, the CSB Commissioners understood, their principal task was to decide whether they were confident about the reliability of the exams: Had the exams fairly measured the qualities of a successful fire officer despite their disparate results? Might an alternative examination process have identified the most qualified candidates without creating such significant racial imbalances.”
…
“After giving members of the public a final chance to weigh in, the CSB voted on certification, dividing 2 to 2. By rule, the result was noncertification. Voting no, Commissioner Webber stated, “I originally was going to vote to certify. . . . But I’ve heard enough testimony here to give me great doubts about the test itself and . . . some of the procedures. And I believe we can do better.” Id., at A1157. Commissioner Tirado likewise concluded that the “flawed” testing process counseled against certification. Id., at A1158. Chairman Segaloff and Commissioner Caplan voted to certify. According to Segaloff, the testimony had not “compelled [him] to say this exam was not job-related,” and he was unconvinced that alternative selection processes would be “less discriminatory.” Id., at A1159­A1160. Both Segalhoff and Caplan, however, urged the City to undertake civil service reform. Id., at A1150­A1154.”
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Sorry for the length of that…

whatever maverick, you’re a complete twit. I’ve basically kicked your teeth in, and I am a troll. Whatever.

Basil, you’ve made a good decision, and I support you fully. Let the troll be cast forth into the darkness to babble idiocies and lies to itself. As of now, spob is officially a corpse, unworthy of any sort of attention.

Hmmmmmmm. I have a question–why didn’t Ginsburg’s opinion deal with the Equal Protection issues? I would think that if she were really saying that the lower court opinion should be affirmed (even though she never really came out and said that), she would have to bounce the firefighters’ equal protection claims. But she didn’t.
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And you know, the Equal Protection issue has a knotty little problem. One of the denied firefighters was Hispanic, and one of the UM cases says you can’t treat some minorities better than others.

“Behind the complicated details of the world stand the simplicities: God is good, the grown-up man or woman knows the answer to every question, there is such a thing as truth, and justice is as measured and faultless as a clock. Our heroes are simple: they are brave, they tell the truth, they are good swordsmen and they are never in the long run really defeated. That is why no later books satisfy us like those which were read to us in childhood /for those promised a world of great simplicity of which we knew the rules, but the later books are complicated and contradictory with experience; they are formed out of our own disappointing memories.”
~
Graham Greene

jcapan, that’s a lovely quote. Can you give me the source for it in Greene’s work?

JR: From his 1943 novel, The Ministry of Fear
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I had to look–I have quotes pasted all about my monitor, on the wall, to the lamp. Greene is perhaps my biggest contributor, well, other than Cormac McCarthy. BTW, if you like ’40′s film noir, Fritz Lang made a solid adap of the novel the following year.

Thank you, jcapan. I haven’t read The Ministry of Fear, but I shall definitely do so as soon as possible. Have you seen the rather nice Penguin Classics deluxe edition of The Quiet American? It really is a pleasure to read:

I believe that a number of Greene’s novels have the deluxe edition – and it really is worth it. Lovely paper, traditional style binding of same – such a joy to have in your hands. Ten bucks for it really is a steal IMHOP.

JR: I’ve not seen that edition. And 10$ sounds quite cheap to me–paperback ed’s of English novels here, particularly lit, often run for twice that or more! Fortunately, as a book whore, I’ve found most of the used shops in the region. I own a ratty, worn p-back ed. of QA from the 60s, pre-quality p-back size. The narrow margins are littered with my ravings. In any event, it’s one of my most treasured texts–I’ve referenced it numerous times in the Swamp (Rose too is a big GG fan). I maintain that QA is the best indictment of American fo-po ever put to ink. The film version with Caine was breathtaking IMO.
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My fav publishers are Everyman’s or the Library of America. The latter of course is only for Yanks.

[...] isn’t it, how conservatives HATE judicial activism… EXCEPT when that judicial activism changes laws THEY don’t [...]

SZ…
regarding the factual basis for the AP story… a reading of the Ginsburg dissent effectively rebuts the idea that city officials did not understand what was wrong with the tests. Five hearings were held by the New Haven Civil Service Board at which the problems with the tests were discussed, and it was after those hearings that the CSB refused to certify the test results — and thus the city was unable to use the tests for promotion.

(see pages 63-66 for the chronology of meetings described in the ginsberg dissent at http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf )