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The Washington Post is concerned that Sonia Sotomayor didn’t seem liberal enough:

At the heart of those questions is another one, which has ignited a debate among legal scholars, advocates and members of Congress. Did the hearings reveal a true absence of liberal ideas in the 55-year-old judge President Obama chose to fill his first Supreme Court vacancy? Or did they reflect sheer political pragmatism by someone, coached by White House staff members and following the model of other recent nominees, seeking to maximize support by avoiding controversy?

Either way, Sotomayor’s reticence, if not her nomination, has disappointed legal thinkers on the left. The hearings “did serious damage to the cause of progressive thought in constitutional law,” said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them “a totally missed opportunity. . . . The progressive legal project hit rock bottom [last] week.”

One liberal Senator, however, gloated that what you saw won’t be what you get with Justice Sotomayor:

And Cardin [D-MD], who announced on Friday that he will vote for Sotomayor, said he is encouraged by her judicial record and her private conversations before the hearings. When she came to his office, Cardin said, he told her he is concerned about civil rights issues. The nominee smiled, he recalled, and told him his concerns were “refreshing.”

Two predictions:

- Sonia Sotomayor will turn out to be more liberal on the Supreme Court than she admitted to being under oath.

- When that becomes clear, it will then be widely blamed on the Republican Senators: “Those racist Republicans turned her into a leftist racialist by acting like they didn’t believe her protestations of utter moderation!”

(Republished from iSteve by permission of author or representative)
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You have to feel a little sorry for Sonia Sotomayor. Here she’s spent all these years giving speeches about what she believes to boring little Diversity colloquia. And now she finally gets on the big stage … and her P.R. handlers tell her she has to dissemble about everything closest to her heart, that if the public knew what she really stood for she might not get ultimate power. (“Trust us, Sonia, it worked for Obama, didn’t it?”)

And, then, some Republicans, surprisingly, grow a bit of a spine and make her repudiate all her best zinger lines … over and over and over.

It had to have been humiliating for her. And she probably figures that when she finally gets on the Supreme Court, now Scalia will mock her by quoting constantly her testimony back to her. “Of course, we all know where Madame Justice stands on this issue; as she so eloquently put it during her colloquy with Senator Kyl etc. etc.,” while Alito chuckles and Thomas does that thing where he just stares at you like you are the most boring waste of time ever.

Seriously, as deficient as these hearings were in various respects, they were still better than the utterly innocuous questioning that Obama bathed in during the 2008 election campaign, when the only man to stand up and speak truth to (future) power was Rev. Dr. Jeremiah A. Wright, Jr. Obama spent 20 months running for President without anybody reading to him from his own memoir.

We need Presidential candidates to be subjected to more hostile questioning by truly hostile, well-informed individuals. Presidential debate cross-questioning is lame because candidates can’t afford to be too hostile or probe too deeply. And moderators are useless at hostile questioning because they are supposed to be moderate.

(Republished from iSteve by permission of author or representative)
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You can read what the two discriminated-against firemen had to say here. (Vargas’s testimony is toward the bottom here.)

It sure would have been better theatre to have plain-spoken witnesses like these guys testify first before the Senators and Sotomayor plunged into the legalistic thickets.

And here’s today cross-examination of Sotomayor by Sen. Kyl, who pretty much comes out and chants liar-liar-pants-on-fire over Sotomayor’s claim that she was just following precedent in trying to deep-six Ricci. “What precendent?” Kyl aks repeatedly and never gets a satisfactory response.

There’s so many weird customs here that apparently preclude asking obvious questions like, “Judge Sotomayor, on Ricci, you say you were bound by precedent as a non-Supreme Court judge. But now you want to be a Supreme Court Justice. How would you have voted on Ricci as a Supreme Court Justice and why?”

(Republished from iSteve by permission of author or representative)
• Tags: Ricci, Sotomayor 
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is now up at

Every so often, an action hit comes out of nowhere—Mad Max, Terminator, Ricci v. DeStefano. Inevitably, we start hoping that the big budget follow-up can keep the same excitement going, just with huger explosions. A few times—Road Warrior, Terminator II—our dreams come true.

I’ve got to say, though, that this Ricci sequel, The Senate Sotomayor Hearing, has so far been the dullest successor since Matrix Reloaded.

Can’t anybody afford a decent script doctor?

You might almost imagine that Sotomayor was crafted to drive away its audience. It’s as if the people in Washington don’t really want American citizens paying attention.


(Republished from iSteve by permission of author or representative)
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Here’s a National Journal article by Stuart Taylor on how Sotomayor and two other judges almost got away with making the Ricci case disappear without their ten fellow judges on the Second Circuit hearing about it. Sotomayor’s old mentor, Jose Cabranes, read about it in his local New Haven newspaper and blew his stack at their tactic, which is the only reason it didn’t disappear down the Memory Hole.

Presumably, Cabranes, a New Havenite, didn’t feel like taking a chance on burning to death due to incompetent New Haven firemen.

Tuesday live update: Orrin Hatch is asking some tough questions about the Cabranes scandal, to which Sotomayor is not replying well, but now Sen. Hatch is rambling off into a speech instead of following up with tougher questions, and now has given up. And now it’s time for lunch. Man, the action is just non-stop!

Anyway, I then had to go out and couldn’t catch the thrill-packed conclusion of Tuesday hearings, so did anything interesting happen?

(Republished from iSteve by permission of author or representative)
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At the heart of the Ricci case, which Judge Sonia Sotomayor attempted to bury so that it couldn’t be appealed when she heard it by upholding the lower court’s anti-Ricci decision without an opinion (outraging her mentor Judge Jose Cabranes), is the Equal Employment Opportunity Commission’s Four-Fifths Rule.

This regulation says that on any employment test, the lowest scoring ethnic group better pass at a rate at least 80% as high as the highest scoring ethnic group.

The fashionable Advanced Placement tests provide us with a database to test the reasonableness of the rule that gives the Disparate Impact theory its teeth. As I mention in post below, blacks only pass AP tests at a per capita rate not Four-Fifths but One-Twentieth of the Asian rate.

But what about just those more elite students who bother to take AP tests? How reasonable is the Four-Fifths rule for them?

The gaps are smaller, but not a single AP exam would pass the EEOC’s Four-Fifth’s Rule, as the table below shows. (And many colleges require not just scores of 3, but 4s or 5s, which make the racial gaps substantially larger.)

62% 64% 26% 42% 40%
47% 28% 19% 66% 29%
56% 62% 21% 27% 34%
59% 61% 21% 34% 34%
60% 58% 20% 31% 34%
55% 59% 20% 27% 34%
57% 65% 23% 30% 35%
66% 70% 25% 36% 35%
63% 68% 24% 34% 35%
69% 63% 24% 36% 35%
53% 55% 28% 80% 35%
54% 59% 21% 26% 36%
53% 56% 21% 27% 38%
67% 64% 27% 33% 40%
57% 54% 23% 28% 40%
61% 61% 25% 35% 41%
73% 78% 32% 61% 42%
64% 64% 27% 31% 42%
64% 67% 30% 42% 44%
77% 99% 75% 44% 45%
71% 78% 36% 46% 46%
65% 66% 30% 39% 46%
57% 84% 44% 40% 48%
62% 57% 31% 43% 51%
65% 65% 33% 40% 51%
72% 71% 38% 48% 53%
70% 71% 38% 48% 53%
75% 76% 44% 50% 58%
67% 69% 42% 52% 60%
70% 77% 48% 56% 61%
62% 69% 47% 44% 63%
66% 73% 46% 60% 64%
70% 73% 47% 55% 64%
Calculus BC 82% 82% 55% 63% 67%
70% 72% 52% 59% 72%
70% 77% 56% 60% 73%
64% 67% 50% 49% 73%
57% 57% 49% 42% 74%

(Republished from iSteve by permission of author or representative)
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From the New York Times:

Trial by Firefighters
by Lani Guinier and Susan Sturm

… But the Supreme Court’s 5-to-4 decision last month — that New Haven should not have scrapped the test — perpetuates profound misconceptions about the capacity of paper-and-pencil tests to gauge a person’s potential on the job. Exams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion. And Ms. Torre’s identity-politics sloganeering diverts attention from what we need most: a clear-eyed reassessment of our blind faith in entrenched testing regimes.

New Haven used a multiple-choice test to measure its firefighters’ retention of information from national firefighting textbooks and study guides. Civil service tests like these do not identify people who are best suited for leadership positions.

This one sentence is the most interesting part of the op-ed: Sturm und Guinier give away the hushed up fact that “civil rights” — as currently understood by, say, Sonia Sotomayor — is an assault on America’s once proud tradition of civil service reforms.

As you’ll recall, when a disappointed government job-seeker assassinated President James Garfield, elevating the Republican ringmaster of the spoils system, Chester Arthur, to the White House, a national outcry against the politicization of lower level government jobs forced Arthur to sign a major Civil Service bill.

Objective written tests for would-be government employees originated in Imperial China, and the idea was transmitted to Europe by early Jesuit missionaries, such as the great Matteo Ricci, who were impressed by how much better China was administered than their own countries. The Chinese tests were not seemingly all that “job-related” — they consisted of questions requiring elegant essays on the Confucian classics, with bonus points for artistic calligraphy. That doesn’t, at first glance, seem to have much to do with, say, keeping the Grand Canal dredged and open to shipping. But, of course, they were tests of IQ, literacy, and diligence, which predicts a lot more about job performance than, say, who you know.

Civil service testing in the U.S. consistently improved in the 20th Century, with the PACE federal civil service test introduced in the mid-1970s being a masterpiece of state of the art social science.

Objective civil service benefited blacks in the first half of the 20th Century, with the heart of the black middle class settling in Washington D.C. because they could get federal jobs by passing blind-graded written tests.

However, as minority political power grew, minorities stopped wanting blind-graded testing extended to fight bigotry and instead wanted it rolled back to benefit themselves over more qualified job applicants. Thus, in January 1981, the outgoing Carter Administration signed a consent decree in the Luevano discrimination case junking PACE, and promising that the federal government would replace it in the future with a test that would be both predictively valid and have much less disparate impact. Of course, 28 years later, the federal government, despite its vast resources, has never been able to come up with that mythical replacement test. So, federal hiring has been based ever since on a hodge-podge of evaluative techniques, with unfortunate consequences for the competence of the federal government.

The most important skills of any fire department lieutenant or captain are steady command presence, sound judgment and the ability to make life-or-death decisions under pressure. In a city that is nearly 60 percent black and Latino, the ability to promote cross-racial harmony under stress is also crucial.

I dunno. I kind of think that knowing what the hell you are doing has something to do with leadership. And, how, exactly does promoting minorities who know less about what they are doing into leadership positions over whites promote “cross-racial harmony under stress”?

Look, I think a reasonable argument could be asserted that police jobs are so inherently political (as the etymological roots suggest) in terms of interviewing suspects and witnesses and the like that a racial quota system might make, sometimes, police departments more effective. That’s a much, much harder argument to make plausible for fire departments, however, since fires don’t have race.

Fire departments, like most government agencies, are monopolies, so they aren’t inherently incentivized by market competition to hire the most effective managers and employees. Thus, strict civil service rules have been developed to produce objective competition for jobs. The diversicrats like Guinier and Sotomayor hate blind-graded competitions, precisely because they are honest and fair.

These skills are not well measured by tests that reward memorization and ask irrelevant questions like whether it is best to approach a particular emergency from uptown or downtown even when the city isn’t oriented that way.

Jeez, this uptown / downtown question is going to be the Regatta Question of the next three decades, isn’t it? Instead of calling these kind of specious talking points “folklore,” we should call them “elitelore.”

As far as I can see from this essay, “uptown/downtown” is the entire factual content of their critique of the New Haven test.

The Civil Service Board in New Haven declined to certify the test not only because of concerns about difference in scores between black and white firefighters but also because it failed to assess qualities essential for firefighting.

C’mon, stop yanking our chains. The city spent a huge amount of money having a good test devised. Read Alito’s opinion for the full behind the scenes play by play. The politicians only decided to change the rule after they found out what the score was. That’s a violation of Hammurabi 101.

As Justice Ruth Bader Ginsburg noted in her dissent, tests drawn from national textbooks often do not match a city’s local firefighting needs.

May I respectfully suggest that Ruth Bader Ginsburg doesn’t know much about fire department testing. Moreover, she’s not interested in learning. Look, New Haven spent $100k having the test customized, so that’s wildly misleading. Personally, I suspect a national test would have worked fine.

The point of the customization is to get minority leaders, such as the black guy who is #2 in the NHFD, to agree that the test is fair and valid — which he did. As Alito pointed out, the mayor’s staff maneuvered to keep the black deputy chief’s opinion of the test’s fairness hushed up.

Most American fire departments have abandoned such tests or limited the multiple-choice format to 30 percent or less of an applicant’s score. In New Haven, the test still accounted for 60 percent of the score.

Gosh, why do you think so many fire departments have gone over to subjectively graded tests where the judges can see the race of the applicant? In order to racially discriminate. (This really isn’t that complicated.)

Compounding the problem, insignificant numerical score differences were used to rank the firefighter candidates.

This is the kind of thing that people say after the game has been played and they know the
outcome. “Hey, when our would-be tying baserunner got tagged out by the catcher at home plate with two outs in the 9th inning, he was only 3 inches from scoring, so therefore, there should be like a 3 inch wide penumbra around home plate that counts the same as home plate, so we shouldn’t have lost!” Obviously, when you put it that way, you can see the special pleading involved. But people don’t think as rigorously about law and public policy as they about baseball, so this kind of sophistry is very appealing to the Who? Whom? crowd.

Guinier rolls on:

What should a city do when its promotion test puts a majority of its population at a disadvantage and is also unlikely to predict essential job performance? People who excel on such a test may expect to be promoted. But testing should not be about allocating prizes to winners. No one has a proprietary right to a particular open job, even if that person worked hard preparing for a test.

There’s a basic rule of ballfield fairness that you don’t wait to see what the final score is and then change the rules to benefit one side.

When a city replaces a bad test, as New Haven wanted to do, the employees who did well on it do not lose their right to compete for promotions; they merely need to compete according to procedures that actually identify people who advance the mission of saving lives and property — and enhance the department’s reputation in the community for treating all citizens with respect.

All the evidence that it was a “bad test” was ginned up post hoc, after the results were in. The city had spent a lot of money to have a legally defensible test, but, having seen the results, it junked it.

Yet many Americans believe so strongly that tests are fair that they never question the outcomes, especially when those outcomes conform to stereotypes about people of color. Such preconceptions lead to the conclusion that blacks or Latinos who don’t do well must lack individual initiative or ability.

I wonder where those stereotypes come from?

The basic statistical fact is that, relatively on average, blacks and Latinos lack individual initiative and ability. But you can get Watsoned out of your job for pointing that out in public.

As the plaintiff in the New Haven case, Frank Ricci, declared, “If you work hard, you can succeed in America.” His lawyer went further: White officials who voted for a better assessment system must have been lowering “the professional standard of competence,” she said, “for the sake of identity politics.” Yet, in New Haven, no one was promoted instead of the white firefighters.

Jeez, the politically favored folks got “acting” promotions. Can’t the NYT afford better dissimulators than these two?

In fact, many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.

Those damn “fire buffs” are racist because they try hard to learn their jobs.

Moreover, it was the firefighters union — which sided with the white firefighters in the Supreme Court — that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white.

So, the guys who will be risking their lives under the officers wanted the officers selected by a method that is at least 60% objective and blind-graded. You’ll note that the 40% that was oral was rigged by the city in 2003 by having two out of three judges on the panels be minorities.

Taking this into account, after five days of public hearings, Malcolm Webber, one of the white members of the New Haven Civil Service Board, said: “I’ve heard enough testimony here to give me great doubts about the test itself and the testing — some of the procedures. And I believe we can do better.”

Oh, come on… Please read Justice Alito’s account of what really happened in this charade.

Unfortunately, the Supreme Court blessed entrenched testing regimes that do not advance public goals and fell for the story about identity politics run amok. That doesn’t mean, though, that cities need to hire and promote firefighters who are “book smart” but “street dumb.”

Fortunately the court left room for municipalities to develop alternative assessments to promote people with the skills needed to advance public safety in a diverse citizenry. Indeed, most American fire departments have already rejected written tests in favor of “assessment centers” that simulate on-the-job challenges and focus on problem-solving in the relevant context. In so doing, city officials demonstrate that their decisions are wiser than the Supreme Court’s.

In other words, let’s use testing methods where the judges can see the race of the applicant, so a proper thumb can be put on the scale.

Lani Guinier, a Harvard law professor, and Susan Sturm, a Columbia law professor, are the authors of “Who’s Qualified?”

The jokes write themselves.

(Republished from iSteve by permission of author or representative)
• Tags: Ricci, Sotomayor 
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… shouldn’t be to try to show that she’s outside the liberal mainstream, but to show what the liberal mainstream actually is.

(Republished from iSteve by permission of author or representative)
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My new column about the Sotomayor hearings scheduled to start on Monday are up.

Once again, my best suggestion for dramatizing Ricci v. DeStefano is for the Republican senators to call Mayor John DeStefano of New Haven as a hostile witness.

The witness lists released today includes Frank Ricci and Ben Vargas, the Hispanic plaintiff in the suit who was violently assaulted and knocked unconscious in 2004 in a racial assault for standing up for his legal rights. But no mayor of New Haven.

The Democrats are calling as witnesses the mayor of New York and a baseball player, whose most famous legal experience was getting sued for $1.8 million by three women to whom he exposed himself while in the bullpen.

Here are a few of my questions for Judge Sotomayor:

- Much as Chief Justice John Roberts asked during oral arguments over Ricci… Can you assure us, Judge Sotomayor, that your decision in Ricci for the City of New Haven would have been the same if minority firefighters scored highest on this test in disproportionate numbers, and the City said, “We don’t like that result, we think there should be more whites on the fire department, and so we’re going to throw the test out?”

- On the South Wall of the Supreme Court Building’s courtroom are carvings of the “great lawgivers of history.” The second earliest lawgiver depicted is Hammurabi, king of Babylon, who is honored for carving the laws in stone and putting them up in public—which meant that even the king couldn’t change the laws after the fact to suit his convenience. Why should Mayor DeStefano enjoy the privilege that King Hammurabi denied himself: to see what the final score turned out to be, then change the rules of the game?

- In the Obama Administration’s friend of the court brief to the Supreme Court on the Ricci case, the Obama Administration called for your decision for summary judgment in favor of Mayor DeStefano to be overturned and the Ricci case to be remanded to local district court for retrial on the facts. Why did you vote for a more extremist outcome than the Obama Administration later called for?

Read the whole thing

(Republished from iSteve by permission of author or representative)
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I’m gearing up for my mid-year panhandling project, which always involves figuring out why Paypal and Amazon aren’t working right anymore. Right now, you can make a tax-deductible donation through

Once they get enough money in, they can put up my article on questions to ask Judge Sotomayor at her Senate hearings next Monday.

(Republished from iSteve by permission of author or representative)
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Swing Justice Anthony Kennedy’s majority opinion is fairly narrow, yet broader and braver than my prediction that he’d merely send it back down for retrial on the facts. It’s a sizable defeat for the Obama Administration and their Supreme Court nominee.

Perhaps the most striking element of Kennedy’s majority opinion is that he never portrays this as the hard, complicated case as the media have been telling everybody. The Supreme Court says: Look at the facts and you’ll see this case is a slam dunk.

In effect, Kennedy’s ruling implies that what happened to Frank Ricci was such a stinkbomb of blatant disparate treatment on the basis of race that the Supremes don’t have to deal all that much yet with the fundamental issue that (as Scalia notes in his concurring opinion) banning Disparate Impact and banning Disparate Treatment are logically and empirically contradictory. Still, the majority casts a jaundiced eye on how much credence they’ll give the Disparate Impact talisman that mere statistical disparity between races is prima facie evidence of illegal discrimination.

What we need now is a case that directly challenges the EEOC’s Four-Fifths Rule. It’s on rockier ground today than yesterday.

Kennedy says, in effect, you just can’t do what Mayor DeStefano did to Frank Ricci — yank the rug out from under him after he took the test because you didn’t like the racial results — at least not without a “strong-basis-in-evidence” that you’d lose a minority plaintiff’s disparate impact discrimination lawsuit. And if the facts resemble the facts in New Haven, Kennedy announces, then this here Supreme Court says you won’t lose that lawsuit; so don’t throw Ricci’s test results out. Capisce? (Warning: This here Supreme Court likely to be replaced by a more Obamaesque Supreme Court in not-too-distant future.)

As commenters on this site, have pointed out, the real question is why this modest and perfectly reasonable response to an egregious injustice was merely 5-4 rather than 9-0?

AP reports:

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

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

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

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.” [Madame Justice is being disingenuous -- New Haven has promoted "acting" fire captains and lieutenants of the politically preferred races.] Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.

The Supreme Court ruled (my apologies for the semi-illegibility of the following — the Supreme Court doesn’t seem to know much about HTML yet — UPDATE – I’ve cleaned the text up a lot, but not completely):

All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. …

Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. …

(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. …

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, … and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. …

That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. … Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. …

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. …

(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions.

Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results …

Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. …

(iv) Fear of litigation alone cannot justify the City’s reliance on race to the det
riment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. …

… reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

Reading through Kennedy’s majority opinion, it appears to be a slapdown of Sotomayor’s Second Circuit Court of Appeals, combined with some wishy-washiness to not rule out Disparate Impact in less obviously egregious situations. Kennedy opines:

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the exami-nation results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” … (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. …

The District Court did not adhere to this principle, however. It held that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.”

And the Government [i.e., the Obama Administration] makes a similar argument in this Court. It contends that the “structure of Title VII belies any claim that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” … But both of those statements turn upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective. Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action. …

But Kennedy doesn’t want to abolish “voluntary” quotas, so he shoots down Ricci’s attorney’s ambitious claim:

Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.

But Kennedy realizes Disparate Impact leads to de facto quotas and he doesn’t want that or at least he doesn’t want de facto quotas to be too obvious:

Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” … Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. … The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.”

So, what magic formula does Kennedy come up with? I’m still reading, so I’ll let you know…

All right, Kennedy’s formula for balancing the bans on disparate treatment and disparate impact is called “strong-basis-in-evidence:”

The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the work-place of “practices that are fair in form, but discriminatory in operation.” … But it has also prohibited employers from taking adverse employment actions “because of” race. …

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. … And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In other words, employers can’t pull the rug out from under employees after they’ve taken the test, as happened to Ricci et al, unless the employer has a “strong-basis-in-evidence” for believing the they would lose a disparate impact lawsuit, which, according to the Supreme Court, New Haven did not.

For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.

The word “any” in that sentence sounds optimistic: in general, fighting disparate impact against NAMs and fighting disparate treatment against whites are inextricably opposite actions.

Kennedy spends some time explaining what his decision doesn’t do:

Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.

Interestingly, Kennedy treats the EEOC’s Four-Fifth’s Rule as merely “a rule of thumb for the courts.”

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participa
te in the process by which promotions will be made.

But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed …, and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. …

I can see how Ginsburg could be sore about this. Kennedy is being ingenuous by reading the 1991 Civil Rights Act naively. After all, the Democratic majority that passed the 1991 Civil Rights Act enshrining Griggs’ disparate impact theory may have “declaimed” racial preferences in public, but the whole point of the legislation was to provide racial preferences by tipping the balance between Type I and Type II errors in favor of legally preferred groups.

Kennedy goes on:

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, … and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. … We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

… There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” …

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

In other words, Judge Sotomayor, Welcome to the Big Leagues. Sorry about throwing that 98 mph fastball right under your chin. Too bad that your shiny new uniform got all covered with dirt when you hit the deck.

Justice Scalia points out the bigger issue in a concurring opinion:

JUSTICE SCALIA, concurring.

I join the Court’s opinion in full, but write separately too bserve that its resolution of this dispute merely post-pones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. …

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. … But if the Federal Government is prohibited from discriminating on the basis of race, … then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race. … As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory….

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. …

The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

My suggestion for how to make peace between Disparate Impact and Equal Protection of the Laws:

Ecrasez I’infame!

So, we’ll see have to wait and see just how spineless the GOP Senators really are when they get a chance to go after Sotomayor over Ricci v. DeStefano.

Once again, allow me to recommend that the GOP Senators in the Sotomayor hearings call Mayor DeStefano as a witness to beat up on him over the injustice he personally did to Frank Ricci, an injustice upheld, fortunately only temporarily, by Judge Sotomayor. If they are too sensitive to ask tough questions of the Wise Latina, they can ask them of the not so wise white guy.

(Republished from iSteve by permission of author or representative)
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Here’s a teaser from my new column on Monday’s upcoming Ricci Supreme Court decision:

Last week, Slate ran a 5000 word article about the New Haven Fire Department, The Ladder, by senior editor Emily Bazelon and intern Nicole Allan. The article turns into an inadvertent reductio ad absurdum of the Sotomayorian conventional wisdom.

Bazelon’s ultimate objection to New Haven’s discarded 2003 testing process is that it wasn’t subjective and arbitrary enough to promote as many minorities as she’s like. She ends her article with a ringing call for a more random selection method that will produce less knowledgeable fire captains and lieutenants:

“The city could come up with a measure for who is qualified for the promotions, rather than who is somehow best. And then it could choose from that pool by lottery.”

Bazelon apparently doesn’t know that lotteries are exactly what cities such as Chicago are already doing with the results of firefighter tests, in an attempt to comply with the Equal Employment Opportunity Commission’s “Four-Fifths Rule”. This regulation puts the burden of proof in discrimination cases on employers when blacks aren’t hired or promoted at least 80 percent as often as whites. …

In 2006, the new Chicago hiring test passed all but the bottom 15 percent of the folks who walked in off the street wanting jobs as firefighters. And then, just as Bazelon recommends for New Haven, the Chicago city government picked “randomly” from the top 85 percent—the crème de la crème of the Disparate Impact Age.

Why did Chicago have to go so low? …

Not until you cut the IQ minimum down to 74 would the EEOC be truly happy: 77 percent of blacks and 96 percent of whites pass. Exactly Four-Fifths!

But, seriously, what’s the point of even giving a test so easy that 96 percent of white people can pass? White people aren’t so smart that somebody at the 5th percentile of the white bell curve is going to make an adequate firefighter.

Bazelon’s lotteries are an incredibly stupid idea because cities end up hiring incredibly stupid people of all races. …

Bazelon is much exercised by the racial injustice inherent in white firefighters knowing more about how to do their jobs. She says:

“Is this the best way to choose the leaders of a municipal fire department—the best memorizers win?”

Worse, the white firemen are unjustly learning more about fire fighting because they care more about fighting fires. Bazelon continues:

“As one Hispanic quoted anonymously by the New Haven Independent put it, the test favored ‘fire buffs’—guys who read fire-suppression manuals on their downtime …”

The white firemen also are advantaged, Bazelon says, because they tend

“… to come from families in which firefighting is a legacy. … Frank Ricci has an uncle and two brothers who are firefighters. He studied fire science at college.”

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

Wikipedia tells us:

“[Bazelon] graduated from Yale College in 1993 and from Yale Law School in 2000. … Bazelon is a Senior Research Scholar in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School.”

You might think that Bazelon would be better qualified to offer advice on admissions and promotions to the LSAT-obsessed Yale Law School rather than to the New Haven Fire Department. By Bazelon’s logic, Yale Law School should hire by lottery. Perhaps—just to get the ball rolling—she could publicly offer to give up her position at Yale Law School to some randomly chosen person?

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

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

This legal journalist’s grandfather, David Bazelon, was the most powerful judge in America not on the Supreme Court when he served from 1962-1978 as Chief Judge of the U.S. Court of Appeals for the District of Columbia.

Needless to say, I’m not implying that Emily Bazelon’s career as a writer on legal affairs has depended upon nepotism.

Rather, I’m pointing out that a family developing and passing on expertise in a particular field—whether the Riccis in firefighting or the Bazelons-Friedans in law and punditry—is a good thing for society in general, because expertise is always in short supply.

Now tell me: why should we have one standard of fairness for Frank Ricci and another for Emily Bazelon?

Read the whole thing here.

(Republished from iSteve by permission of author or representative)
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Supposedly, the Supreme Court will announce its decision in Ricci v. DeStefano on Monday.

What are your predictions?

Also, feel free to make predictions about how the Sotomayor hearings will play out.

And if you feel an urgent need to refresh yourself on all the wisdom I’ve been dispensing on the topics of “Ricci” or “Sotomayor,” just click the Labels below.

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A recent paper, “Does Affirmative Action Lead to Mismatch: A New Test and Evidence” by four economists (Arcidiacomo, Aucejo, Fang, and Spenner) has some inside info from the Duke U. admissions department on Duke students, including SAT scores and freshmen grades. The table on p. 14 shows the standard rank order — Asian, white, Latino, black — on most of the various measures that the Admissions department worries about, as well as freshman grades. The overall results aren’t surprising:

Asian: SAT 1464, freshman year GPA 3.40
White: SAT 1417 (s.d. 100), freshman year GPA 3.33 (s.d. 0.46)
Latino: SAT 1349, freshman year GPA 3.13
Black: SAT 1281, freshman year GPA 2.90

An SAT gap between whites and blacks of 136 points is not particularly large. (The Bell Curve lists SAT gaps from the early 1990s for 26 well-known colleges, ranging from 95 points at Harvard, the apex predator in the black recruitment game, to 271 at Rice, which is a small school that competes in big time sports, so a high proportion of Rice’s black students are also jocks.) Perhaps Duke’s famous basketball team raises its profile in the black community, letting it do well in recruiting strong black students (e.g., its black basketball players tend to be from upscale backgrounds, like Grant Hill and Shane Battier, plus Italian-speaking Kobe Bryant and his 1100 SAT score were headed to Duke from Lower Merion HS until the Lakers picked him straight out of high school).

The standard deviation for white students on the SAT (100) is about half of what it is for whites overall, so the 136 point racial gap is equal to 1.36 standard deviations. In contrast, the GPA gap is only about 0.94 standard deviations, probably due to to blacks taking easier courses.

The economists are concerned about investigating whether or not affirmative action admissions to Duke could hurt the NAM students by tossing them in over their heads. To my mind, it all depends on something they don’t look at: intended major. If you just want a soft major, then you should of course take any opportunity presented to you to attend an elite private college with a huge endowment. High tuition colleges don’t flunk out many people, so about the worst that could happen to you is that you spend four years feeling like Michelle Obama or Sonia Sotomayor, worried that people can tell that you got in on affirmative action and angry at them for noticing. But, really, cry me a river …

On the other hand, if you want to major in something hard like mechanical engineering, then maybe you shouldn’t jump in too far over your head.

(Republished from iSteve by permission of author or representative)
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Mickey Kaus points to an NYT article about Sonia Sotomayor’s service on some kind of New York housing handout board a couple of decades ago, which documents both her Obama-like Who? Whom? worldview and her anti-Obama tendency to rub people the wrong way.

“She wanted lower-income people served, and that’s a good goal,” said Royce Mulholland, who represented the state’s Division of Housing and Community Renewal on the board. “But we also explained that the insurance program was intended to serve moderate- and middle-income apartments — and we only provided the insurance, which means we had very little leverage.”

Ms. Sotomayor did not confine her scrutiny to the balance between low- and middle-income housing.

After receiving a report about the agency’s affirmative action program in 1989, she requested a breakdown of the number of black and Hispanic workers. Later that year, when she was informed that just 8 percent of the agency’s contracts went to businesses owned by women or members of minorities, she called its performance “abysmal.”

“It was like a boys’ club when we came there,” recalled Hazel Dukes, who is black and joined the board about the same time as Ms. Sotomayor. “We knew how to be pushy. We were like bees in their bonnet.”

Fioravante G. Perrotta, a former agency board member, did not care for Ms. Sotomayor’s views. Mr. Perrotta recalls her as conscientious and knowledgeable, but he said she was an “extreme partisan” on questions of class and ethnicity.

“She made it very clear that she was very liberal and a Democrat,” Mr. Perrotta said, “and that really should have been a nonpolitical organization.”

Basically, Sotomayor is what Barack Obama would be if he had never mastered his “I have understood you” Jedi mind control shtick where he recounts his interlocutor’s argument more eloquently that his conversational partner put it himself, thus persuading 99% of the people he talks to that he shares their views. After all, if he understands my views, how could he possibly not hold my views?

John Carney at Business Insider offers a more lucid explanation of what this government thing-a-mabob was supposed to do, and how Sotomayor’s activism is relevant to today’s mortgage meltdown.

(Republished from iSteve by permission of author or representative)
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When it comes to racial preferences, Barack Obama and Sonia Sotomayor are ideological twins, although most Americans don’t realize it yet. Unlike the master politician, however, Sotomayor tends to rub people the wrong way. Still, the Republican Senators are highly unlikely to be able to stop Sotomayor. And it’s not clear that they should want to, since once on the Court, the mediocre and abrasive Sotomayor is unlikely to evolve into a William Brennan-like master backstage manipulator of the other Justices.

Still, a lengthy hearing over Sotomayor would be the best opportunity for the GOP to begin the process of enlightening the public that Obama isn’t the post-racial President that David Axelrod has spun him as. Clearly, the New Haven firefighter reverse discrimination case of Ricci v. DeStefano should be central to the hearings.

Yet, old-fashioned chivalry and post-modern sensitivity both dictate that a bunch of white male conservative Senators like Jeff Sessions can’t be seen asking too many probing questions of a lady / minority. The GOP needs a bad guy to pound in these hearings, but Judge Sotomayor isn’t a guy.

So, the GOP Senators should subpeona a witness on the Ricci v. DeStefano case. They should subpeona and then roast alive on the witness stand the defendant, beady-eyed New Haven mayor John DeStefano (seen here), who engineered cheating Ricci and company out of their promotions. This will associate DeStefano’s petty political machinations to please his main black supporter with Sotomayor, Obama, and racial preference supporters in general.

For examples of the kind of questions they could flail DeStefano with, just refer to the Supreme Court’s oral questioning in the case. For example, Mayor DeStefano’s city attorney claimed that the city had strong evidence for discarding the test as invalid after finding out the results by race. But Justice Samuel Alito pointed out the preposterousness of that claim in a scalding rhetorical question:

“[The city] chose the company that framed the test, and then as soon as it saw the results, it decided it wasn’t going to go forward with the promotions. The company offered to validate the test. The City refused to pay for that, even though that was part of its contract with the company. And all it has is this testimony by a competitor, Mr. Hornick, who said—who hadn’t seen the test, and he said, I could do a better test—you should make the promotions based on this, but I could give you—I could draw up a better test, and by the way, here’s my business card if you want to hire me in the future.

“How’s that a strong basis in the evidence?”

This could be fun.

(Republished from iSteve by permission of author or representative)
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The root of Obama’s Sotomayor Problem is this: Having decided for political reasons that he wanted a female Hispanic who was liberal on affirmative action and not too old and had plausible credentials, Obama then ran into a reality that is unpleasant but was logically inevitable: There just aren’t that many Wise Latinas (whether self-proclaimed or not) out there. After all, if there were, then they wouldn’t need affirmative action to avoid the “cultural biases” that cause disparate impact, now would they? If there were lots and lots of very smart Latinas, then they wouldn’t be an aggrieved interest group demanding that the Supreme Court continue to protect their special legal privileges.

So, that left Obama with exactly one name: Sonia Sotomayor, Esq.

But, it turns out, she doesn’t have the kind of oily personality that allowed Obama to slip-slide through a 20 month Presidential campaign with only a few brief snags during the Rev. Wright contretemps. Nor, does being a Puerto Rican give her the kind of anti-skepticism race card Kryptonite that Obama’s claim to being an African American gave him. Finally, in the worst bit of bad luck, she had gotten the Ricci case, which puts the issue of affirmative action on the kind of personality basis that average Americans can understand.

Of course, I presume, she’ll wind up on the Supreme Court anyway, but it has been a bit of an eye-opener for the naive.

(Republished from iSteve by permission of author or representative)
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From the New York Times:

Judge Sonia Sotomayor once described herself as “a product of affirmative action” who was admitted to two Ivy League schools despite scoring lower on standardized tests than many classmates, which she attributed to “cultural biases” that are “built into testing.”

On another occasion, she aligned with conservatives who take a limited view of when international law can be enforced in American courts. But she criticized conservative objections to recent Supreme Court rulings that mention foreign law as being based on a “misunderstanding.”

Those comments were among a trove of videos dating back nearly 25 years that shed new light on Judge Sotomayor’s views. She provided the videos to the Senate Judiciary Committee last week as it prepares for her Supreme Court confirmation hearing next month.

The clips include lengthy remarks about her experiences as an “affirmative action baby” whose lower test scores were overlooked by admissions committees at Princeton University and Yale Law School because, she said, she is Hispanic and had grown up in poor circumstances.

“If we had gone through the traditional numbers route of those institutions, it would have been highly questionable if I would have been accepted,” she said on a panel of three female judges from New York who were discussing women in the judiciary. The video is dated “early 1990s” in Senate records.

Her comments came in the context of explaining why she thought it was “critical that we promote diversity” by appointing more women and members of minorities as judges, and they provoked objections among other panelists who pointed out that she had graduated summa cum laude from Princeton and been an editor on Yale’s law journal.

But Judge Sotomayor insisted that her test scores were sub-par — “though not so far off the mark that I wasn’t able to succeed at those institutions.” Her scores have not been made public.

“With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates,” she said. “And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action to try to balance out those effects.”

Judge Sotomayor’s approach to affirmative action has been the subject of intense scrutiny. Conservatives have criticized her remarks in speeches that her personal experiences will influence her judging, and they have focused on her vote to uphold a decision by New Haven to throw out results from a firefighters’ exam because not enough members of minorities scored well.

In the program, Judge Sotomayor also rejected the proposition that minorities must become advocates of “selection by merit alone.” She said diversity improved the legal system — like having a Hispanic judge in a case where a litigant and his family is Hispanic, and who can translate what is happening into Spanish.

“Since I have difficulty defining merit and what merit alone means, and in any context, whether it’s judicial or otherwise, I accept that different experiences in and of itself, bring merit to the system,” she said, adding, “I think it brings to the system more of a sense of fairness when these litigants see people like myself on the bench.”

Judge Sotomayor also mentioned her personal involvement in challenging testing in a 1994 interview. Reflecting on her 12 years on the board of the Puerto Rican Legal Defense Fund before she became a judge, she recalled helping change its policy focus from voting rights and bilingual education to economic issues, like “cases attacking civil service testing and issues of union admissions.”

So, Judge Sotomayor appears to be basically a hard-working grind. Obama wanted a liberal female Hispanic, so he had to take what he could get. There just aren’t that many Wise Latinas out there (if there were, they wouldn’t need affirmative action to avoid disparate impact), so Obama got stuck with the Second Coming of Harriet Miers.

But it’s not as if brilliance is a necessity for being on the Supreme Court. It’s more helpful lower down the hierarchy where you have to explain yourself well in the hopes that the Supreme Court will like your reasoning. Once you are a Supreme, however, you don’t have to think cogently, you just have to vote. Sandra Day O’Connor’s majority ruling in the Grutter affirmative action case is inane, but, so what? O’Connor’s maunderings are the law of the land.

At age 54, Sotomayor’s undoubtedly got more on the ball cognitively than 89-year-old liberal Justice John Paul Stevens. His opinion in Johnson v. California showed him to be an elderly fool. But so what if Stevens is 89? He’s on the Supreme Court, ain’t he? Stevens’ vote counts just as much as that of somebody not in his dotage.

Obviously, Sotomayor was no more able to vote objectively on Ricci than Michelle Obama would have been. Sotomayor’s ego, personal and ethnic, is tied up in her remaining convinced, against the overwhelming weight of evidence, that there must be “cultural biases built into testing.” If not, how else could tests have disparate impact? (The only other logical possibility would be too horrible to contemplate.)

But once you make it on the Supreme Court, little things like bias and brains are insignificant. When you are a Supreme, we’re talking Who? Whom? time now.

(Republished from iSteve by permission of author or representative)
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Marx defined the ruling class as those who control the means of production. But that seems so 19th Century. Today, the key is to control the terms of discourse.

For example, consider how affirmative action largely disappeared as something disussable in polite society in recent years. John McCain had a chance to take it up as an issue in 2008 but decided not to touch it. How’d that work out for him?

Today, people are talking about affirmative action again because Obama blundered by appointing a judge who had voted against Frank Ricci.

And yet, consider how the discourse remains structured even among Sotomayor’s critics: as a moral issue of fair play. Hey, it’s 2009: why not talk also about it as an economic issue? Can we continue to afford racial/ethnic preferences? Will we be able to continue to afford them in the future as the country adds 97 million Hispanics from 2000 to 2050?

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The Weekly Standard has a transcript of a WSJ link to oral arguments in 2nd Circuit Court of Appeals hearing of the Ricci case:

KAREN LEE TORRE (lawyer for Ricci et al): I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. … Please look at the examinations. … You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn’t require any knowledge to do the job. …

JUDGE SOTOMAYOR: Counsel … we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there’s an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you’re unqualified–the pass rate is the pass rate–all right? But if your test is always going to put a certain group at the bottom of the pass rate so they’re never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?

KAREN LEE TORRE: Because they already developed it, your honor.

JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it’s valid.

KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid…. They had evidence that the test was job-related and valid for use under Title VII.

Once again, I predict a narrowly drawn verdict for Ricci on the grounds that the city of New Haven refused to have done the validation study that they had already paid for.

But Sotomayor’s question reveals the kind of disingenous intentional cluelessness that is the media conventional wisdom.

The unmentionable truth is that a fair test of a complicated subject will always tend — on average — to put NAMs at the bottom. Life is one long series of aptitude tests. Fire captains need to know a lot of stuff — much of it that will never come up in their jobs … until the day it does — and studying for their promotions exams are times when they are motivated to really learn.

So, what should be done legally about the fact that fair and relevant tests will be tests that whites do better on average than blacks?

I don’t really like the idea of burning to death because the less competent guy got the promotion due to his race, so I’d say: nothing.

On the other hand, if we must offer firey sacrifices to the goddess Diversity, then it’s better to have explicit racial / ethnic quotas than to lower standards, as, say, Chicago has done to meet the EEOC’s Four-Fifths Rule by passing 17,000 out of the 20,000 firefighter applicants who walked in off the street, then choosing randomly among the top 85% of the distribution. People are less likely to die horrible deaths if we have quotas that at least select the best whites, the best blacks, and so forth.

If any Supreme Court clerks are reading this, here’s my suggestion: as the EEOC’s “Four-Fifths Rule” that put’s the legal burden of proof on hiring or promoting methods under which any group does less than four-fifths as well as the best-performing group should be abolished for the same reason that the “separate but equal” doctrine was no good. Sure, it sounds okay in theory, but in practice, separate but equal turns out to be largely a fraud. Similarly, as decades of social science (orders of magnitude more conclusive than the tentative social science confidently cited in Brown v. Board of Education) show, the Four-Fifths Rule institutionalizes fraudulence, as Judge Sotomayor’s question demonstrates.

(Republished from iSteve by permission of author or representative)
• Tags: Ricci, Sotomayor 
Steve Sailer
About Steve Sailer

Steve Sailer is a journalist, movie critic for Taki's Magazine, columnist, and founder of the Human Biodiversity discussion group for top scientists and public intellectuals.

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