Let's say Sotomayor is confirmed (which I expect) and a petition for cert considered by SCOTUS involves whether there is a basic constitutional right or privilege for basic medical care. Might this Latina, growing up where and how she did, having diabetes, vote for cert based upon her experiences as a Latina? (Let's assume the petitioner is a white male from a Red State.) Or might this Latina, who has available to her the greatest medical coverage, vote to deny cert on the basis that the petitioner should pull him/herself up by his/her bootstraps and find a way to afford private insurance?
 

This the author of the book "A Bound Man: Why We Are Excited About Obama and Why He Can't Win"

At first, I thought this entry was about Michael Steele, which was probably unfair to MS.
 

Interesting recent essay by Professor Kmiec, who recently wrote in defense of using empathy in judging, on Judge Sotomayor.

The pages of history that would have been turned by Sotomayor as a student reveal valuable lessons regarding the scope of executive power, and what results when Congress – whether or not Speaker Pelosi was fully briefed -- is swept too readily into its thrall. In removing one occupying force, then and now, we sometimes neglect to contemplate how the occupied will view those who remain. From this history, taking notes upon her student's yellow pad, Sotomayor might well have derived lessons about the importance of a judicial check even in matters military.

I wonder how it works when your former professor is now your colleague on the bench.
 

In the 1980s, Steele wrote a series of brilliant essays, collected in The Content of Our Character: A New Vision of Race in America, in which he insightfully examined the psychology, among both blacks and whites, that underlies affirmative action. Even though he was critical of affirmative action, he was thoughtful and not conservative in a knee-jerk political sense. In recent years, he has become a knee-jerk Republican reactionary, and his opinions are not worth the trouble you take to respond to this one.
 

I have no idea why Steele is writing a cheap red meat hit piece when the nominee is providing so much of her own material that raises serious questions about her qualifications.

Conservatives who oppose her nomination should stick to questions about Sotomayor's judicial philosophy. They have no grounds to question her qualifications for the job.

Judge Sotomayor's ability to follow the law and her impartiality are questions of her judicial qualifications.
 

"Judge Sotomayor's ability to follow the law and her impartiality are questions of her judicial qualifications."

both of which are aptly demonstrated by even a cursory examination of her actual rulings .. unless viewed through the slotted lenses of a loathsome spotted reptile ..
 

If their group is not yet competitive with whites, the moral authority that comes from their grievance should be allowed to compensate for what they lack in development. This creates a terrible corruption in which the group's historic grievance is allowed to count as individual merit.

These 2 sentences, which I take to be the crux of Steele's argument, are incoherent. The first one talks about the "development" of a "group". The second, however, refers to individual merit. Who cares what stage of "development" a "group" has reached if the individual actually has merit?

The more I think about this, the sadder it gets. Is Steele suggesting that women (one of the groups in which he places Sotomayor) haven't reached the same stage as men? If he doesn't think that, why'd he mention gender as part of identity politics?

What is a "stage of development" anyway? How does one know what "stage" a "group" has reached? What groups are relevant here -- diabetics? 54 year olds? females? Latinas? Puerto Ricans? Princeton graduates? Yale law school graduates? Federal judges? How many of these groups have to reach the same "stage" at the same time?

This is embarrassingly bad.
 

" Sotomayor may have benefited from affirmative action to get into Princeton"

REALLY Getting Tired of seeing this meme treated as if it were in any way realistic. It's not as if Princeton was the first place from which she graduated at the top of her class. You do yourself no favor in perpetuating it.
 

Dare I say it, is this an example of our resident LLB* (aka the "pot") calling the kettle black:

"I have no idea why Steele is writing a cheap red meat hit piece ...."

as opposed to our resident LLB*'s red meat?

*Little Lisa's bro
 

Conservatives who oppose her nomination should stick to questions about Sotomayor's judicial philosophy.

If that's all they do, they'll lose. Meanwhile, if the GOP were smart, they'd turn public opinion against her by telling the truth about what she's said and done, including focusing on her membership in this group.
 

This is knee-jerk friend-of-my-enemy stuff.

When you look at Sotomayor's record, there's no reason to believe she's liberal. She's an ex-prosecutor, she sentenced hard, she kowtows to AEDPA's rights-without-remedies regime. She's an ex-IP lawyer, she's supported the RIAA's jackboot tactics; she's not somebody I'd want to take a fair use or parody claim before.

We have no idea how she'll approach abortion, environment, national security, federalism, criminal statutory interpretation.

She could definitely be the liberal Souter, a "home run" who turns into an "own goal".
 

i suffered my way thru the "why obama can't win book," and stelle's fatal flaw is that he thinks that everybody thinks about race the same way he does..his descriptions of how students at harvard think about race struck me as fantasy...i came away with the impression that mr. steele simply doesn't get out into the real world very much...as much as it would displease him to hear me say it...he's simply become a race-hustler..... saying stuff conversatives want to hear
 

r.friedman says: When you look at Sotomayor's record, there's no reason to believe she's liberal.

Then, you look at the things she's said and done, such as this from 1983: No matter how liberal I am, I’m still outraged by crimes of violence. That's a mix, so it must be good, right? Then, you note how deeply steeped in far-left identity politics she is and the fact that she joined not just one but two far-left racial power groups, including one that gave an award to someone who'd proposed genocide. (Note to liberals: it was the good kind of genocide, so it's OK.)
 

(Note to liberals: it was the good kind of genocide, so it's OK.)

# posted by LonewackoDotCom : 1:04 PM




The extermination of rightwingnuts?
 

Lonewacko--

So how has her participation in "identity politics" or her membership in two "far left racial power groups" impacted her decisions? How has it undermined her ability to an effective judge? What decisions has she authored that reveal she has been influenced by her involvement in the groups?
 

Thanks for your comments on Shelby Steele. Well said, and to the point.

But I have a question here, that I don't believe is racist. Is Shelby Steele not trading on the darkness of his skin? And is he not asian-indian by ancestry, thus falsely trading as a member of the african-american minority in this country?

Is there anything other than his dark skin that has allowed him entry by the rightwing into the whole racial debate in this country?
 

testing
 

mclamb6 inquires: So how has her participation in "identity politics" or her membership in two "far left racial power groups" impacted her decisions?

I haven't reviewed those decisions and I don't intend to. A review someone else did was somewhat panned by a few, so I'm not going to trust in that.

And, it would certainly be possible for her to be a completely different judge once she's at her final stop than she was before. She could basically do anything her little heart desires if she makes it to the Supreme Court.

P.S. The president of the group that SS was a member of for six years recently got Mexico's highest award for foreigners. The Mexican government would have at least an acquaintance on the highest court in the U.S., and probably something more akin to a slight friend.
 

Of the Steele twins, Professor Claude Steele is the brilliant one: social psychology professor at Stanford and Provost-designate of Colombia Brief CV Here.

Sad to say, Claude's brother Shelby has developed into the kind of conservative shill one expects to find these days at the Hoover Institution.

Poor Bart wrote: "I have no idea why Steele is writing a cheap red meat hit piece..." Surely, the answer is only too simple - for lucre and for propaganda dressed up as scholarship. Fellows at Hoover make are expected to eke out their stipends with potboilters and op-eds. Remember the NYT article on Shelby's Obama potboiler: ‘Why Obama Can’t Win’ Author Defends Analysis.

See also Peter Robinson's Uncommon Knowledge series which Hoover and the NRO were busy promoting last year. Interspersed between contributions from well-known liberals, such as Justice Scalia, John Bolton, James Woolsey et alia), one finds:-

17 Nov: Shelby Steele says Barack Obama won the presidential election by successfully basing his candidacy on race.
18 Nov: Shelby Steele says we know very little about the content of Barack Obama’s character — although we will come to know it with every decision he makes as president.
19 Nov: Shelby Steele says Obama represented an opportunity for white voters to dispel the stigma that this is a racist country. Black voters, by contrast, voted for Obama to dispel the idea that they are inferior. Either way, the November elections revealed how this country is obsessed by race.
20 Nov: Shelby Steele says no white candidate could have won the 2008 presidential election armed with Barack Obama’s policies. and

21 Nov: Shelby Steele says racism – in the aftermath of the 2008 presidential election — is now located by default in the Republican party. How can the GOP shake this stigma? Steele says the process won’t be easy, and that it may very well lead Republicans to betray the values that have made America great.

"Shelby Steele says..." is beginning to sound a bit like "Bart De Palma said...". A preface which serves much the same purpose as the Surgeon-General's warnings on the side of cigarette packets - to the effect that something nasty lurks within.
 

Lonewacko--

Sotomayor as a Manchurian candidate? Didn't we go through this once already?
 

@Lone Whacko --

Identity politics don't equate to liberalism. My experience with Hispanic families is that they are extremely pro-law-and-order. They after all were part of Nixon's coalition.

Libertarians are usually treated as a type of conservative, the individualist rather than the authoritarian type. I would think libertarians would be concerned about mandatory DNA sampling (listen to Koch v. Lockyer, 06-56220, on the 9th Circuit oral arguments page for 6/2) or mandatory showing of identity papers. Do you want to be like England where every public space is under TV surveillance?

The Fear of the Other by which Bush/Cheney governed has rent enormous holes in the fabric of liberty. I wanted Obama to appoint someone who would fight back, unlike either Ginsberg or Breyer. I think Diane Wood would have been a much better nominee.
 

mclamb6 said...

Lonewacko-So how has her participation in "identity politics" or her membership in two "far left racial power groups" impacted her decisions? How has it undermined her ability to an effective judge? What decisions has she authored that reveal she has been influenced by her involvement in the groups?

Those are great questions that should be thoroughly explored this summer during the nomination process.

I agree with you that Sotomayor's membership in these advocacy organizations do not per se disqualify her as a judge. However, they do beg very questions you posed.
 

Ken,

A recent piece in the NYT comparing Thomas and Sotomayor clearly suggested that her background was a factor in getting into Princeton. It also suggested, however, that she got into Yale Law School without such consideration.

I don't have the link to the piece, which came out last week, but you can find it easily.

Brian
 

Perhaps these "great questions" that our resident LLB* thinks are begging to be asked of Sotomayor might be considered with respect to Roberts and Alito's Federalist Society involvements and connections:

"Lonewacko-So how has her participation in 'identity politics' or her membership in two 'far left racial power groups' impacted her decisions? How has it undermined her ability to an effective judge? What decisions has she authored that reveal she has been influenced by her involvement in the groups?"

Yes, Roberts and Alito have already been confirmed. But their SCOTUS decisions might be examined to see how their Federalist Society connections may have been influential. I would agree that such membership would not "per se" have disqualified them, but as our resident LLB* says of Sotomayor just might beg the question.

By the Bybee, during their confirmation hearings, were Roberts and Alito questioned as to whether being whites males might influence how they might decide a matter? Would one expect white males on the Senate Judiciary Committee to ask such questions of white male nominees? If not, why might a Latina be asked by white male Senators such a "race" question?

*Little Lisa's bro
 

The NYTimes article Brian referenced in his comment appeared 6/7/09 on the front page titled "For Sotomayor and Thomas, Paths Fork at Race and Identity" by Jodi Kantor and David Gonzalez. It is a great read. I learned a lot more about Thomas, especially what he went through as he finished up at Yale Law and tried to get a job in a white society, how he reacted, in comparison to how Sotomayor reacted to similar treatment. It was not that long ago. Society was not then nor is it today colorblind. Add gender to the mix and it brings out the white male yahoos with their lingering fears of an African American as President.
 

Thurgood Marshall helped pave the way for Clarence Thomas. Perhaps the route that Marshall took to SCOTUS should be compared side by side with the route Thomas took, followed by a side by side comparison of their performances on SCOTUS. Marshall challenged the exclusive rule of the white males whereas Thomas succumbed despite his easier path. Just think of the courage of Marshall in Brown v. Board of Education, the routes the case took, culminating in his addressing 9 white males in black robes, convincing them and getting them to a unanimous decision, without concurring opinions. Marshall paid his dues in full. Perhaps in time Thomas will understand this and stop focusing on how he personally felt when he was challenged as perhaps an affirmative action beneficiary by the white male law firms that rejected him.
 

"qualifications for the job"

I can see how the term is used in this discussion, but it is useful to remember that 'qualifications' in this context is a broad number of qualities that go beyond strict knowledge of the law and judging.

[Thus, when a senator votes against an Alito or Sotomayor, they can say s/he is not 'qualified' without insulting their intelligence.]

This is seem in the Caperton ruling yesterday (see also, Dahlia Lithwick's commentary at Slate), where the various qualities involved in judging were discussed.

As DL notes, even if you agree with the dissent as to the inability of the majority to draw an adequately clear line, the discussion of judging as a whole stands up.

And, the ability to do all those things would go into 'qualifications.'
 

Shag from Brookline said...

Perhaps these "great questions" that our resident LLB* thinks are begging to be asked of Sotomayor might be considered with respect to Roberts and Alito's Federalist Society involvements and connections:

The Dems had the opportunity to determine whether the Federalists, an organization advocating interpreting the law as written, influenced Roberts and Alito's jurisprudence. After the Souter surprise, one can only hope it did.
 

Stuart Taylor:

Of course, senators and others who speak out for nondiscrimination and against racial preferences will be falsely accused of playing the race card. The best response is to avoid inflammatory rhetoric while stressing the nondiscrimination principle and the real-life consequences that are at stake.

Consequences such as those described by Karen Lee Torre, the white firefighters' lawyer, in her December 2007 oral argument before the Appeals Court panel.

In response to Judge Rosemary Pooler's assertion that "no one was hurt" in the New Haven case, Torre said: "No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 apiece [for test preparation].... They spent three months of their lives holed up in a room, like I was and you were when we took the bar exam."

Torre went on to emphasize why the test was a valid basis for making promotions -- and what can happen when promotions go to people who have not done their homework:

"These men [are not] 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.... 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.... The court [should] 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....

"Firefighters die every week in this country.... A young father and firefighter, Eddie Ramos, died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house... with a truss roof known to collapse early in [a] fire because of the nature of the pins that hold the trusses together.... And the fire chief had to go tell a 6-year-old that her father wasn't coming home."

Judge Sotomayor responded by observing that there must be "a fair test that could be devised that measures knowledge in a more substantive way."

Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires.
 

"Firefighters die every week in this country.... A young father and firefighter, Eddie Ramos, died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house... with a truss roof known to collapse early in [a] fire because of the nature of the pins that hold the trusses together.... And the fire chief had to go tell a 6-year-old that her father wasn't coming home."



Baghdad, do you know if the person commanding the scene in that incident got a good score on the test?
 

Is this the "translation" of Stuart Taylor or of our resident LLB*:

"Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires."

with respect to the test in issue?

Our resident LLB* has yet to respond on a separate thread to my question on demonstrating that the test in issue indeed measures competence in firefighting.

*Little Lisa's bro
 

Mr. DePalma,

Judge Sotomayor responded by observing that there must be "a fair test that could be devised that measures knowledge in a more substantive way."

Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires.


End conservative fantasy land – return to reality. What really happened was this:


Counsel:...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 accountants or even real estate brokers. But somehow we treat firefighters as if it doesn’t require any knowledge to do the job. Firefighters die every week in this country, and when I opened up my brief, I told Judge Arterton of a case, right a few miles away where young father and firefighter Eddie Ramos died after a truss roof collapsed in a warehouse fire because the person in command at the scene decided to send men into an unoccupied house with no people to save, on Thanksgiving day, with a truss roof, known to collapse early in a fire because of the nature of the pins that hold the trusses together. Well, it collapsed, and for twenty minutes he couldn't find any air and he suffocated to death, and the fire chief had to go tell a six year old his father wasn't coming home. I'm not being histrionic, that happens all the time. And if you can't pass a competency exam, and answer substantive job knowledge questions, I think the only compelling governmental interest or Title VII interest I see-

JUDGE SOTOMAYOR: Counsel

Counsel: yes?

JUDGE SOTOMAYOR: I...ah, eh, eh, eh... 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?


First, for some reason, every conservative citation I've seen of this exchange leaves off the last two sentences of counsel's argument before Sotomayor's response.

Second, and more importantly, note – the judge didn't respond by observing there must be a more fair test that would give a disadvantage to people who know about firefighting, Sotomayor asked the firefighters' attorney if New Haven should be allowed to see if a more fair test exists, and if so develop it to allow qualified minorities who passed the test to be better represented in the promotion. This arose because, in an incredibly novel and previously unheard of technique, the attorney for the firefighters set up a strawman dichotomy between test takers who had passed, and those who had not. Of course, the real debate is between the minorities who had passed, and the non-minorities who had passed with higher scores.

We can read here, Mr. DePalma. No amount of revisionism on your part will change that. If you want to discuss things in a good faith, honest manner, so be it. Ricci certainly presents interesting questions about how far the desire to promote non-discrimination in hiring should go. But don't think for a second you can make up claims without being caught, or pass on debunked right wing nonsense here.
 

Regarding the orals in Ricci, I listened to them and imho the firefighters' counsel came off as somewhat "histrionic" at times ... her insistence otherwise notwithstanding.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

nerpzillicus said...

Taylor: Judge Sotomayor responded by observing that there must be "a fair test that could be devised that measures knowledge in a more substantive way."

Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires.

End conservative fantasy land – return to reality. What really happened was this:

Counsel:...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 accountants or even real estate brokers. But somehow we treat firefighters as if it doesn’t require any knowledge to do the job. Firefighters die every week in this country...I'm not being histrionic, that happens all the time. And if you can't pass a competency exam, and answer substantive job knowledge questions, I think the only compelling governmental interest or Title VII interest I see-

JUDGE SOTOMAYOR: Counsel

Counsel: yes?

JUDGE SOTOMAYOR: I...ah, eh, eh, eh... we’re not suggesting that unqualified people be hired. The city’s not suggesting that. 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?

First, for some reason, every conservative citation I've seen of this exchange leaves off the last two sentences of counsel's argument before Sotomayor's response.

How are those two sentences relevant to anything?

Second, and more importantly, note – the judge didn't respond by observing there must be a more fair test that would give a disadvantage to people who know about firefighting, Sotomayor asked the firefighters' attorney if New Haven should be allowed to see if a more fair test exists, and if so develop it to allow qualified minorities who passed the test to be better represented in the promotion.

This issue was not before the Court. The City never alleged that the the test was substandard in any way, only that it was avoiding being sued because no African Americans passed the test. Sotomayor is raising the argument sua sponte to defend racial preferences.

2) Taken on its own merits, Sotomayor's sua sponte argument is racist nonsense. This was a test of technical knowledge. There is no cultural component that could be discriminatory. Sotomayor is thus assuming that African Americans are too dumb to pass this technical test and implying that the test should be dumbed down. Taylor was simply being polite in declining to state this as baldly as I just did in his concluding sentence.

Ricci certainly presents interesting questions about how far the desire to promote non-discrimination in hiring should go.

The issue before Sotomayor was to what extent, if at all, the City should be permitted to engage in racially discriminatory promotion practices. It is very clear that Sotomayor will more than sanction, but will actively defend government racial discrimination.
 

Bart says:

"2) Taken on its own merits, Sotomayor's sua sponte argument is racist nonsense. This was a test of technical knowledge. There is no cultural component that could be discriminatory. Sotomayor is thus assuming that African Americans are too dumb to pass this technical test and implying that the test should be dumbed down. Taylor was simply being polite in declining to state this as baldly as I just did in his concluding sentence."

Seriously Bart? That's no where near what she said. She is actually stating that there are (taking this at face value from the quotes provided) minorities who pass the test, but who are not promoted, simply because of the number of vacancies available and that, even though the minorities passed the test, they will not be promoted because white men scored slightly higher. She then questions whether there is a way to structure the test so as to ease the disparity in promotions. It has nothing to do with promoting unqualified individuals, as you mis-state (repeatedly).
 

And our resident LLB* can point to what in the record, including briefs of the parties, supporting this:

"This issue was not before the Court. The City never alleged that the the test was substandard in any way, only that it was avoiding being sued because no African Americans passed the test. Sotomayor is raising the argument sua sponte to defend racial preferences."

in particular "only that [the City was avoiding being sued because no African Americans passed the test"?

As to Sotomayor's alleged "sua sponte," would this have been on her own without any of the other Judges on the panel? And were there minorities other than African Americans who did not score high on the test?

By the Bybee, is "passing the test" correct versus "not scoring high" on the test? Was this a pass/fail test?

And then our resident LLB* states:

"Sotomayor is thus assuming that African Americans are too dumb to pass this technical test and implying that the test should be dumbed down. Taylor was simply being polite in declining to state this as baldly as I just did in his concluding sentence." My, my, our resident LLB knows what Sotomayor is assuming and he tells us (not assumes) that Taylor was "simply being polite in declining to state this as baldly as I just did ...." Perhaps our resident LLB* meant "badly" in reading Taylor's mind.

Just listen to our resident LLB*'s "rat-a-tat- tat" with his concussive efforts, drumming on a single matter. And he continues to avoid showing how the test in issue measures competency in saving firefighters' lives.

*Little Lisa's bro
 

Mr. DePalma,

First, for some reason, every conservative citation I've seen of this exchange leaves off the last two sentences of counsel's argument before Sotomayor's response.

How are those two sentences relevant to anything?

It demonstrates what Sotomayor was responding to when she says “we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?” You have repeatedly alleged the use of the pronoun demonstrates Sotomayor's “advocacy” for the City (and, thus the minorities, and thus her racist intent, etc, etc, Hitler, QED), when it actually demonstrates Sotomayor responding to a ridiculous argument from counsel, who attempts to refute an argument no one is making – that people who did not pass the test will get jobs over those who did. That isn't the question here – it is a strawman, and Sotomayor was (if you listen to it) exasperated at the silliness of the argument, and attempted to bring it back to the issues at hand. Addressing an advocate that apparently either 1) has no idea what the facts or the law of the case are or 2)thinks she has no idea what the law or the facts of the case are, and hopes Sotomayor will be distracted by bold, inaccurate claims and strawman arguments. so Sotomayor, in near disbelief, brings the situation back to reality, and you can hear the incredulity in her voices. Sort of like how I feel most of the time here.
 

This issue was not before the Court. The City never alleged that the the test was substandard in any way, only that it was avoiding being sued because no African Americans passed the test. Sotomayor is raising the argument sua sponte to defend racial preferences.

Of course that is what the City is saying. New Haven, upon seeing the test results feared suit from minorities alleging the test was unfair and had a disparate impact. That's the entire point of the case. The City presented tons of testimony that the test was flawed. From the Scotus brief:

The evidence that has come to light in this litigation offers nothing to undermine the grounds to conclude the tests were flawed—rather, the evidence only reinforces that there was ample cause for concern. To start with, IOS did not design the tests so that 70, the passing scores, actually reflected minimal competence for promotion. Legel explained that IOS skipped the “very critical process”—the Angoff workshop—that determines proper cut-off scores. Pet. App. 698a.22 Instead, IOS designed “difficult” written tests, which necessarily screened out large numbers of candidates. Pet. App. 685a. This Court has disapproved of this very approach. See McDonnell Douglas, 411 U.S. At 806 (suggesting that “a testing device which overstates what is necessary for competent performance” would be improper); 29 C.F.R. § 1607.5(H). Moreover, in his testimony, Legel never suggested
that the tests were calibrated closely enough to be used to rank-order candidates, which requires that each higher score reflect better anticipated job performance. The precision of the scores was critically important because of the intervening state court decision interpreting the Rule of Three so as to prevent the City from rounding to the nearest integer (CAJA1706-1720), which meant that New Haven would be promoting based on score differentials of a tenth, or even a hundredth, of a point. Petitioners do not suggest that these concerns about flaws are unfounded except insofar as they insist that the City knew “or willfully endeavored to avoid knowing” that the tests were valid. Br. 51. This argument rests on their claim that the test designer “stood ready” to provide, and the City refused to receive, a “technical report” that would have proved the tests were job-related. Br. 51-52. This argument is a red herring. The “technical report” or “validation study” would not, as petitioners’ arguments (Br. 51-52) suggest, actually prove whether the tests were “valid” in the sense of being job-related to properly assess the candidates for the promotions. Rather, as IOS itself has made clear, it is a descriptive document that lays out the steps taken in the process of designing a test. IOS explained this report is not in itself “a necessary document” because it simply summarizes the test development process. Pet. App. 596a-597a; see also Pet. App. 338a (IOS letter stating “there is nothing further we can add concerning the development and administration of the tests[]”). The report would not have proved whether the tests themselves were valid or flawed and, in turn and contrary to petitioners’ suggestion (Br. 11, 51-52), would not have protected the City in any future litigation, as the case law makes clear. See, e.g., Firefighters Inst. for Racial Equality v. City of St. Louis, 616 F.2d 350, 357 (8th Cir. 1980) (St. Louis “attempted to establish the validity of the examination” and submitted a validation study, but “the examination is not content valid”).

App of Respondent 30-32.

So, yes, evidence was inarguably presented, and the argument made, that the test was not fair. The City had no fear of a Title VII suit if there was no evidence that there was something wrong with the test. You really have no idea what you are talking about.
 

2) Taken on its own merits, Sotomayor's sua sponte argument is racist nonsense. This was a test of technical knowledge. There is no cultural component that could be discriminatory. Sotomayor is thus assuming that African Americans are too dumb to pass this technical test and implying that the test should be dumbed down. Taylor was simply being polite in declining to state this as baldly as I just did in his concluding sentence.

So wait a minute – Sotomayor is a racist against whites (she says “we're”, advocating for the City), but she is also racist against blacks, thinking they're dumb. But she also ruled against a hispanic, so she is self-loathing. They're all men, so she's a sexist. Damn, she's a horrible person. Hopefully she's ruled against women at some point, so she can be a superracist, sexist latina who also hates women and hispanics, apparently, due to the purity of her racism. That's like a superpower. Can she legislate from the bench faster than a speeding bullet, too? Someone call Stan Lee!

Read the briefs, and the law. Disparate impact does not require a cultural component. If it is disparate, and there is a less impactful way to test, the city is liable under Title VII. The fact that there were problems with the test is the crux of the City's case. Sua sponte is the last way to describe this. There is a lot of evidence about just how close the scores were, how the scoring was arbitrary, etc. The more convincing portion of Ricci's case is that the business necessity is a pretext, because the test has always produced these unbalanced results, and the City never did anything to fix it in the past. This statement makes me think you don't have any idea about the law on this case. I don't see how anyone who would say this could.


Ricci certainly presents interesting questions about how far the desire to promote non-discrimination in hiring should go.

The issue before Sotomayor was to what extent, if at all, the City should be permitted to engage in racially discriminatory promotion practices. It is very clear that Sotomayor will more than sanction, but will actively defend government racial discrimination.

No, the issue before the Court was whether the City could claim the threat of a subsequent Title VII suit was a sufficient business interest to discriminate based on race. That's why the case is interesting. The City, in order to avoid a discriminatory promotion practice Title VII suit for not promoting minorities, then discriminated against the high scorers due to the lack of minorities in that group by throwing out the test. It is a classic case of “damned if you do, damned if you don't.” One who looks at it objectively sees, from a policy standpoint, it's a messy case. From the way the law currently is, I have a hard time seeing how the firefighters can win, unless they show pretext, which there seemingly is decent evidence of. So I would expect it gets knocked back down for further consideration and trial on that element. It seems there is a pretty good dispute of material fact there.

The great irony of the whole Sotomayor situation is that you spend all this time accusing her of bias, when, in almost everything you write about it, your own bias comes shining through. You don't look at these cases as an objective viewer, instead you argue them as an advocate, using excessive rhetoric to prove your point (as if it's convincing).
 

Well, it's already down to the all-Bart show, here.

However, I wanted to note this from Lonewhacko (?!):

I haven't reviewed those decisions and I don't intend to. A review someone else did was somewhat panned by a few, so I'm not going to trust in that.

Since we are engaging in mind-reading and trnaslation, here, I'll have a go:

I haven't reviewed those decisions, and never will because I am not really interested in her judicial record. I heard there was a review and the results were favorable to her, so I cannot trust that.

This is such a huge problem in Court nominations. All these people are getting crazy about a nominee with little or no knowledge of her real qualifications or abilities. It's just down to the barest form of political mud-slinging - for the sake of the mud-slinging itself.

I will give Bart this much, at least he tries to engage others on the judicial record. Maybe he distorts and misrepresents, but at least he is talking about cases. I'm astonished by the number of people who simply are not interested in what kind of Justice we might get on the Court. To me, that's the only thing that really matters.
 

Shag:

1) Read the briefs. The City is arguing that it can yank a promotion test merely because it has a racially disparate result, not that the test in fact was racially discriminatory. This is the fundamental weakness of their argument. The City is essentially contending that it can discriminate against white and hispanic firefighters in order to avoid a lawsuit by black firefighters even if there was no discrimination against the black firefighters.

2) The LT exam appears to have two tiers. A firefighter who achieves a minimum score is eligible for promotion and, under the "rule of three," the top three scores are automatically promoted. African Americans pass this test at half the rate of whites and none were eligible for promotion after taking this particular test.

3) Sua sponte generally means an issue raised by the court and not the parties. Thus, the issue of whether the test was racially discriminatory was raised sua sponte by the courts and not the parties.

4) As for whether any other minorities were denied promotion, the disparate impact being claimed by the city is limited to African Americans. Of note, one of the plaintiffs is an hispanic firefighter who was denied promotion.

5) Given that the city has not operated without this test, there is no way to scientifically determine whether promoting without the test would cost the lives of firefighters and civilians. However, the firefighters' counsel appears to be referencing an incident where the commanding officer did not have the knowledge tested in the promotion exam and he sent a firefighter to his death.
 

Sotomayor may have benefited from affirmative action to get into Princeton

On the contrary, Sotomayor got into Princeton in spite of a restrictive quota. I'm going to have to look up that NYT piece to see exactly what it says, but in fact Sotomayor was admitted at a time when Princeton had a strict limit on the number of women students -- in her class (1976) there were something like 6 men for every woman, and the admission rate for men was *much* higher than for women.

I should point out that this particular admissions scheme was set up so that no woman could "take a man's place" by getting into Princeton. There were still just as many male students as before co-education, women had to compete harder for a smaller number of spots.

There was, it's true, a recruiting effort to attract applicants from groups (blacks, Native Americans, Hispanics, etc.) which Princeton had historically excluded. But

1) the idea that these "affirmative action" admits were mediocre is preposterous. The only obviously mediocre students at Princeton at that time were either (white, male) alumni children, athletes, or both.

2) the idea that Sonia Sotomayor was a mediocre student is *flagrantly* preposterous. She won the Pyne Prize, Princeton's highest undergraduate award, and was ranked second in her class. The idea that she was anything less than academically brilliant is frankly insane.
 

Nerp:

1) How does the firefighters counsel's claim that she is not being histrionic have anything to do with Sotomayor's use of the term "we" to apparently refer to herself and the City? Sotomayor's correction in the very next sentence to use the term "city" indicates that she used "we" to mean her and the City.

2) Sotomayor was not bringing the argument back to the issues raised on appeal. Sotomayor's response addressed only the firefighters counsels comments on the test and did not change the subject.

3) The incredulity in the voices of Sotomayor and her colleagues is just a further indictment of their obvious bias on behalf of the City's racial discrimination made plain by their grossly slanted questions. Were the firefighters denied promotion really harmed? Can't a technical test be modified to ensure that more African Americans pass it? There was not even a pretense of objectivity here.

4) Affirmative action racial preferences are based on the racist belief that government must discriminate against the majority race because minority races cannot succeed on their own. Yes, both the act of discriminating against the majority race and the belief that minority races cannot succeed on their own are equally racist.

5) What is so ironic is Sotomayor's complete intellectual disconnect between her open and obvious advocacy of racial preferences and her offense at being considered an affirmative action baby in law school unable to succeed on her own.
 

Mr. DePalma:

1) How does the firefighters counsel's claim that she is not being histrionic have anything to do with Sotomayor's use of the term "we" to apparently refer to herself and the City? Sotomayor's correction in the very next sentence to use the term "city" indicates that she used "we" to mean her and the City.

I did say the last twosentences. Counsel's second sentence, as I have already explained is the strawman. Three hispanics and three African Americans passed the test. Yet, counsel for Ricci sets up the strawman argument that:

“if you can't pass a competency exam, and answer substantive job knowledge questions, I think the only compelling governmental interest or Title VII interest I see-”

Sotomayor corrects counsel that this (non-passing test takers getting jobs) is not the issue, and has not been advocated or assumed by anyone, including the Court:

JUDGE SOTOMAYOR: Counsel

Counsel: yes?

JUDGE SOTOMAYOR: I...ah, eh, eh, eh... 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?

The issue is whether the passing minorities, whose scores were lower than the white test takers, would have a Title VII claim against the city. When Sotomayor says “we”, she means the Court, she means, no one, nowhere, has argued what counsel just argued a sentence before. The problem in the case is the relative rankings of those who passed.


2) Sotomayor was not bringing the argument back to the issues raised on appeal. Sotomayor's response addressed only the firefighters counsels comments on the test and did not change the subject.

Counsel began talking about people who did not pass the test, which is not at issue. I don't know how many times I need to post the transcript for you to see this, but I'll do it again:

I'm not being histrionic, that happens all the time. And if you can't pass a competency exam, and answer substantive job knowledge questions, I think the only compelling governmental interest or Title VII interest I see-
Those who failed the test are not the issue. Sotomayor does bring it back to the disparate impact on those who passed, not those who didn't.
 

3) The incredulity in the voices of Sotomayor and her colleagues is just a further indictment of their obvious bias on behalf of the City's racial discrimination made plain by their grossly slanted questions. Were the firefighters denied promotion really harmed? Can't a technical test be modified to ensure that more African Americans pass it? There was not even a pretense of objectivity here.

Considering a) Ricci had to overcome the district court's ruling that there was no harm, I would bet counsel for Ricci was thrilled to get the softball on the question of harm. This is exactly the question an appellate advocate wants – directly on point to a sketchy ruling below, and allows the advocate to inject some emotion and (wait for it) see it she can elicit some empathy for her clients. If I've got Ricci's case, I'm swinging for the fences on this softball!
And b) obviously it can, since evidence was presented on this issue. But considering this is a fundamental question, as the City is liable under Title VII if, even though the test was not facially biased, it had a disparate impact, and if there was a less impactful way to conduct the test. Let's get this clear, cause you obviously don't know the law. If the City promoted based on the test, the minority firefighters certainly could have sued. They would have tried to “demonstrate[] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 USC 2000e-2(k)(1)(A)(i). I think everyone could agree there is a disparate impact here. The City would have tried to show “the challenged practice is job related for the position in question and consistent with business necessity.” Id. I think everyone would agree the City would be able to show that. However, if “the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice,” the minorities who did not get promoted would win. 42 USC 2000e-2(k)(1)(A)(ii). So, if a test exists that would not cause a disparate impact, the City was obliged to utilize that test. Sotomayor's question goes to the absolute heart of the case. (true the roles are kinda reversed, since the City is trying to prove the hypothetical case against itself, but still). So, if the City can show that there were flaws in the test, and an alternate test was possible, it would have been liable under Title VII had it used the results. So, the City proves the hypothetical prima facia case against it in the alternate reality. Objectivity? That is the law! Those are the questions Counsel for ricci must answer to win. You really do not know what you are talking about.


4) Affirmative action racial preferences are based on the racist belief that government must discriminate against the majority race because minority races cannot succeed on their own. Yes, both the act of discriminating against the majority race and the belief that minority races cannot succeed on their own are equally racist.

But you are talking policy here, not the law. Sotomayor is following Title VII, which creates these test and rules. You wouldn't want the court to substitute its policy preference for the law, would you? See 42 USC 2000e-2(k). That's how the Congress wrote it. I'm sure you wouldn't say Roberts was sexist in Ledbetter, would you?


5) What is so ironic is Sotomayor's complete intellectual disconnect between her open and obvious advocacy of racial preferences and her offense at being considered an affirmative action baby in law school unable to succeed on her own.

Yowza! Again, show me where she failed to follow the law.
 

nerpzillicus said...

Mr. DePalma: 1) How does the firefighters counsel's claim that she is not being histrionic have anything to do with Sotomayor's use of the term "we" to apparently refer to herself and the City? Sotomayor's correction in the very next sentence to use the term "city" indicates that she used "we" to mean her and the City.

I did say the last twosentences. Counsel's second sentence, as I have already explained is the strawman. Three hispanics and three African Americans passed the test. Yet, counsel for Ricci sets up the strawman argument that:

“if you can't pass a competency exam, and answer substantive job knowledge questions, I think the only compelling governmental interest or Title VII interest I see-”

Sotomayor corrects counsel that this (non-passing test takers getting jobs) is not the issue, and has not been advocated or assumed by anyone, including the Court.

Thanks for the clarification of your argument. I have been puzzling over what you meant. However, I would suggest that you are mistaken.

The firefighters counsel if referring to the City's LT promotion exam when she referred to "a competency exam" where the takers had to "answer substantive job knowledge questions." She was not referring to hiring exams. "Substantive job knowledge questions" are hardly limited to hiring exams.

Considering a) Ricci had to overcome the district court's ruling that there was no harm, I would bet counsel for Ricci was thrilled to get the softball on the question of harm. This is exactly the question an appellate advocate wants – directly on point to a sketchy ruling below, and allows the advocate to inject some emotion and (wait for it) see it she can elicit some empathy for her clients. If I've got Ricci's case, I'm swinging for the fences on this softball!

The judge's derisive question was not a softball, it was a bad pitch thrown hard and high, which the firefighters attorney hit out of the park. The effectiveness of the firefighters attorney's response is likely why Sotomayor got hot under the collar, made her Freudian slip with the plural "we" and went off concerning testing.

And b) obviously it can, since evidence was presented on this issue. But considering this is a fundamental question, as the City is liable under Title VII if, even though the test was not facially biased, it had a disparate impact, and if there was a less impactful way to conduct the test. Let's get this clear, cause you obviously don't know the law.

Read the briefs. The City conducted hearings on whether to ratify the test where they examined just this question. They invited a competing testing company, who claimed they could do a better job, but admitted that the current test was not unlawful. The primary argument against ratification at the hearing was offered by the Department, who as afraid of being sued. This tipped the scale against the test.
 

Bart:

This issue was not before the Court. The City never alleged that the the test was substandard in any way, only that it was avoiding being sued because no African Americans passed the test....


It doesn't need to be "substandard" to be objectionable. Tests measure many things, some of these things imperfectly, and some of these things not things that we want to measure.

One of the most widely recognised IQ tests (not the Cracker-Jack™ box ones that Mensa hands out), the WAIS-R, asks what colour the American flag is. Now don't tell me that question is not culturally loaded...

Sotomayor is raising the argument sua sponte to defend racial preferences.

Oh, BS.

2) Taken on its own merits, Sotomayor's sua sponte argument is racist nonsense....

Huh? How so?

... This was a test of technical knowledge. There is no cultural component that could be discriminatory.

Oh, BS, again. As I pointed out above, cultural loading is almost impossible to remove.

And insisting on knowledge of metallurgy seems a bit beside the point; we're not hiring physicists, forensic scientists, or disaster evaluation engineers (and just see what kinds of fluff you get there, for instance, in the 9/11 conspiracy freaks...) There's technical knowledge ... and then there's what's useful on a scene, in the heat of the moment, during a fire. Not to mention, I'd be a bit underwhelmed to see some guy whip out architectural drawings and a slide rule and calculating when a building is in danger of going down ... rather than asking people if there's anyone inside (which seems to the the big failing in the example given by the plaintiff's lawyer).

That said, I know nothing of the specifics of the technical merits (and cultural loading and other deficiencies) of the specific test rejected ... but neither does Bart. But the issue was whether that test needed to be used. And the answer is "no". New Haven ought to be allowed to go back to the drawing boards and see if they can refine it if they think that is possible. And that should be dispositive.

Cheers,
 

nerpzillicus quotes the city's brief:

This argument rests on their claim that the test designer “stood ready” to provide, and the City refused to receive, a “technical report” that would have proved the tests were job-related. Br. 51-52. This argument is a red herring. The “technical report” or “validation study” would not, as petitioners’ arguments (Br. 51-52) suggest, actually prove whether the tests were “valid” in the sense of being job-related to properly assess the candidates for the promotions. Rather, as IOS itself has made clear, it is a descriptive document that lays out the steps taken in the process of designing a test. IOS explained this report is not in itself “a necessary document” because it simply summarizes the test development process. Pet. App. 596a-597a; see also Pet. App. 338a (IOS letter stating “there is nothing further we can add concerning the development and administration of the tests[]”). The report would not have proved whether the tests themselves were valid or flawed and, in turn and contrary to petitioners’ suggestion (Br. 11, 51-52), would not have protected the City in any future litigation, as the case law makes clear."

Reminds me of the colloquy about IQ tests from the Jensen/Herrnstein days:

"Q: What do IQ tests measure?"

"A: Why, they measure IQ."

"Q: What is IQ?"

"A: Well, it's what IQ tests measure...."

And with that, they are ... "sua sponte" ... 100 % valid.

Cheers,
 

nerpzillicus, the light of wisdom and honor shines upon you. Well, that's what I think anyway.
 

arne:

As a engineer, you should know better.

Are you really contending questions concerning the mechanical properties of trusses and the like which deal in objective fact are culturally or racially biased?
 

Well, we're getting somewhere, I think...


Mr. DePalma:



Sotomayor corrects counsel that this (non-passing test takers getting jobs) is not the issue, and has not been advocated or assumed by anyone, including the Court.


Thanks for the clarification of your argument. I have been puzzling over what you meant. However, I would suggest that you are mistaken.


The firefighters counsel if referring to the City's LT promotion exam when she referred to "a competency exam" where the takers had to "answer substantive job knowledge questions." She was not referring to hiring exams. "Substantive job knowledge questions" are hardly limited to hiring exams.



I'll accept that you were puzzled in good faith. However, I am not mistaken. Irony, apparently is not dead. No one is talking about “hiring exams” either. I do see I said “non-passing test takers getting jobs” - perhaps to be more clear, I should change “jobs” to “the promotions.” With that clarification, counsel for the firefighters made a strawman argument – again, “And if you can't pass a competency exam, and answer substantive job knowledge questions” - no one, not one person, is concerned with those people who did not pass the promotion exam. Sotomayor corrects counsel, and brings her back to the point – the City's alleged Title VII problems with disparate impact upon those who passed. Counsel was exploring a non-issue, Sotomayor brought her back to reality. From the District Court:


Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. Pl. Ex. Vol. I, at 43. Given that there were 7 Captain vacancies in the department when the tests were administered, and that the “Rule of Three” in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared at that time that no blacks and at most two Hispanics would be eligible for promotion, as the top 9 scorers included 7 whites and 2 Hispanics. Seventy-seven applicants took the Lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. Thirty-four passed, of whom 25 were white, 6 black and 3 Hispanic. Id. There were 8 vacancies, but because all of the top 10 scorers were white, it appeared that no blacks or Hispanics would be promoted.

554 F.Supp.2d 142, page 3 (sorry for the lack of direct page cite, I only have the slip opinion).

So, when the firefighter's counsel started saying "if you can't pass a competency exam, and answer substantive job knowledge questions" she is making a strawman, since no one is talking about the disparate impact to those who did not pass the test. Sotomayor correctly calls her out on the false argument, and gets her back on track.
 

The judge's derisive question was not a softball, it was a bad pitch thrown hard and high, which the firefighters attorney hit out of the park.


Here is the sequence from Judge Pooler:



Judge Pooler: – Why isn't that [Hayden v. Nassau County] dispositive in this case?

Counsel: Hayden has- so- it is the most fraught[?] set of facts in this case, Judge. Hayden, Hayden didn't – One of the reasons this Court reached its conclusion in Hayden was because they said well, nobody lost anything, they had - nobody had taken the test yet. That was a bizarre set of facts where not-minorities sued to stop the city from even developing a test. It bears no resemblance to this case, in fact, the Court pled[?] the equal protection analysis that no one was hurt here, no one was burdened, no one lost an opportunity, there were [inaudible]

Judge Pooler: [interrupting] So did Judge Arterton here, so did Judge Arterton, she said no one was hurt here either.

Counsel: No one was hurt? [Laughing] What would it - For heaven's sake, Judge...



With all due respect, if you find that question derisive, you are too thin skinned to be practicing law, and most certainly shouldn't be doing appellate work, and Scalia might make you cry in open court. That is a perfectly valid appellate question, especially since the trial court found no one was hurt. Again, this is your bias showing – there is nothing - not a thing - wrong with the question, since there is a dispute as to whether there was any harm. Judge Pooler explicitly references the finding of the District Court, and gives counsel an opportunity to state why that finding was erroneous. As I said, counsel should be thrilled she got the question, since it gives her a chance to illustrate what I am sure she considers to be a gross error in a crucial finding in the lower court. Again, from the District Court:


Furthermore, plaintiffs were not “deprived of promotions.” As the parties agree, under New Haven’s civil service rules, no applicant is entitled to promotion unless and until the CSB certifies the results. Even then, application of the Rule of Three would give top scorers an opportunity for promotion, depending on the number of vacancies, but no guarantee of promotion; it is even conceivable that the applicant with the highest score never would be promoted. See United States v. City of Chicago, 869 F.2d 1033, 1038 (7th Cir. 1989) (where state law permitted promotion from among five highest-ranked individuals on eligibility list, challenger had no property right to promotion: “a roster ranking may create an expectation of promotion, but an officer has no entitlement to a particular roster position or to promotion.”); Bridgeport Firebird Society v. City of Bridgeport, 686 F. Supp. 53, 58 (“At best, the provisions of the City Charter [mandating a Rule of One for promotions] provide the firefighters ranked on the . . . eligibility list only with a mere expectation of promotion, which does not rise to the level of a legally protected interest, especially in the face of ‘presumptively discriminatory employment practices.’”) (quoting Kirkland, 711 F.2d at 1126)). Thus, while the facts of Hayden were slightly different than those here, the Court finds the holding quite relevant and instructive. Defendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim. Accordingly, the Court will grant defendants’ motion and deny plaintiffs’ motion for summary judgment on this claim.

Id. 38-40.

Counsel would certainly want an opportunity to correct that finding in the appellate court, since if the appellate court sustains the lower court's reasoning, the firefighters will lose.
 

The effectiveness of the firefighters attorney's response is likely why Sotomayor got hot under the collar, made her Freudian slip with the plural "we" and went off concerning testing.



Seriously, at this point, you either cannot read, or simply want the world to be the way you want it to be, reality be damned.

To recap:

1. though it is subjective, I found the firefighters' attorney's response a little whiney and, yes, histrionic. This is an appellate court, not a jury trial. The legal issue whether passing a test creates a cognizable right or entitlement to a promotion, thus damages. Counsel's meandering into personal relationship stresses etc, distracts from the legal argument.

2. Objectively, Sotomayor was irritated, as I so often get, because the attorney was making a strawman argument that no one else made. There was no “Freudian slip” - she meant to say “we”, meaning the Court, was not asserting unqualified people (those who did not pass the promotion exam) have a claim. She emphasized the City did not contend that. The point is no one asserted that. The issue, again, is the disparate impact to the minorities who passed.


And b) obviously it can, since evidence was presented on this issue. But considering this is a fundamental question, as the City is liable under Title VII if, even though the test was not facially biased, it had a disparate impact, and if there was a less impactful way to conduct the test. Let's get this clear, cause you obviously don't know the law.

Read the briefs. The City conducted hearings on whether to ratify the test where they examined just this question. They invited a competing testing company, who claimed they could do a better job, but admitted that the current test was not unlawful. The primary argument against ratification at the hearing was offered by the Department, who as afraid of being sued. This tipped the scale against the test.

I have read the briefs (have you?), and I am not sure what your point is here. There is no “unlawful” standard for the test. The statutory burden on the City is, as I quoted before, “the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.” This is admittedly complicated, but the thrust is:

1)there doesn't have to be anything wrong with the test, “culturally” or any other way. It simply needs to create a disparate impact
2)if there is a test out there that would not create the disparate impact, the City is obliged to use that “better” test.
3)The City presented evidence that there were flaws in the test, and that another test could have been “better”

The City had a problem, I think this is rather clear.
 

Bart:

arne:

As a engineer, you should know better.

Is it permissible to say, "As a lawyer, you should know better"?

Are you really contending questions concerning the mechanical properties of trusses and the like which deal in objective fact are culturally or racially biased?

Culturally, no doubt. I suspect that people from the northern part of Canada (say, the Inuit) would in general do worse on questions on trusses.

You didn't read what I wrote, or you didn't understand it, or you choose to ignore it. I said that tests in general (and almost assuredly this test) measure some things you want to measure (imperfectly) and some things you don't want to measure (unavoidably).

Even for engineering tests, there's obvious cultural loading. Let's say the test language is English (or whatever language you want to pick). Someone not proficient at English may not be able to understand the questions (or the instructions) but that hardly means they don't understand the engineering involved. That's easy to figure out. Even if you rewrite the test instructions and questions in the applicant's native language, there's no assurance you've done a good job (consider, for a moment, the instructions you find with various purchases nowadays ... even worse for technical products, it seems).

Then there's the point that these people aren't going for a civil engineer license. This point you ignored as well.

As the defence counsel pointed out, the question here is whether minute score differences, well below the accuracy of the test itself, ought to count for who gets the jobs, when there is undoubtedly some cultural loading as well.

I don't have the answer here, Bart. But I don't see that, absent proof of invidious intent and actual discrimination (which is what the courts have said to blacks complaining about equal protection violations, but not to the white man Dubya for that case and that case only), there's anything the plaintiffs can allege and prove to get any relief.

Cheers,
 

posted by mattski :
nerpzillicus, the light of wisdom and honor shines upon you. Well, that's what I think anyway.

A God among men, is what I would say. Particularly apt in light of his apparently infinite patience.
 

Comment by Torre, plaintiff's attorney:

"No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 apiece [for test preparation].... They spent three months of their lives holed up in a room, like I was and you were when we took the bar exam."

So they're [getting taught] to the test, eh? Three months holed up like they're going for bar exams? What kind of test is this that requires that?!?!? [not to mention anyone that needs three months prep for such is hardly someone I think actually knows the underlying material. What kind of OTJ skills is the test measuring [particularly since many conservatives who support the plaintiffs are adamantly against such standardized paper'n'pencil testing in schools; they only like such standardized testing when it inures to their benefit]?

And spending $1K in test prep [assuming such actually helps]? How does that not work to screen out disadvantaged classes?

Cheers,
 

With respect to our being holed up to take the bar exam, how does passing the bar exam assure that the new successful members of the bar will be competent attorneys? Surely there are some incompetent attorneys out there. Ricci's argument fails the test of relevance, in that there are no legal caps on the number of bar candidates (other than 100%) that can pass the bar exam.

So just how does the test in issue demonstrate the competency of the test takers in saving the lives of firefighters?

Arne brings up the "class" issue of those who can afford to pay big bucks for test prepping. That happens everyday with parents who soon after the cradle pay big bucks to give their kids the edge over other kids whose parents may not be able to afford the big bucks because they have been trapped economically over the decades - centuries - by the rule of the while male. For these yahoos, it's a zero sum game - and they'll take every advantage that money can buy.
 

consider, for a moment, the instructions you find with various purchases nowadays ... even worse for technical products, it seems



These words were found on the engine case of a Kubota tractor some 20 yrs ago:

"Be avoid a full strok [sic] of ram"

Seriously, though, I think this is one of those threads that redeems the whole comment thread question, and I wish JB would poke his head in and take a look.

Thanks in particular to the exquisite patience and sagacity of nerpzillicus (I always imagined he was a she!) Bart's fraudulence, not to mention his careless arrogance, is on full display for all to see. That is what free speech ought to accomplish, and it's a beautiful thing when it does.
 

This comment has been removed by the author.
 

To follow up on Mattski, our resident LLB*'s comments on this thread demonstrate that he initially shot from the lip and as he was challenged over and over he eventually dug into the records to respond and even then he was further challenged, and so on. In other words, he did not do his research in advance of shooting from the lip, perhaps picking up on right wing talking points, to make his mark on a Latina. The challenges from Nerp in particular - and others - forced our resident LLB* to actually dig deeper into the record. But what our resident LLB* accomplished was digging a deeper hole that he has yet to climb out of on this thread. I hope his DUI clients are not suffering from his digging on other than their cases. If they knew, it might sober them up for good.

*Little Lisa's bro

[Note: This is a repeat of my preceding comment with minor corrections in the first sentence. I shall trash my preceding comment shortly to avoid being criticizing for doing so by you know whom. Of course, others are free to trash me if they choose.]
 

I thank those for the humbling praise. I agree this shows why comments on this blog can be good. Although, it must be said that there are certain structural reasons for this. First, this conversation became legal analysis of a case. Lately, the vast majority of the postings at Balkinization seem to be more policy-orientated, and less law analysis. Some that are law analysis tend not to have comments open. though this distinction does not stop the usual suspects from inserting policy and personal arguments [see above], a more narrow legal topic allows good faith posters to fall back to a more orderly discussion if some off topic comments have arisen. Open ended "stuff's wrong with the constitution" or "OMG, look what Cheney said now" tend to lead to a less cohesive set of debating points. In the end there is very little we can do about it, but here are my guidelines:
1) try to have a specific topic that is at least somewhat constrained by a legal framework, and preferably narrowly tailored to debating two or three points
2) avoid name calling (except for "illiterate" and the sort. I can't help myself on that)
3) never, never, no matter how bad you want to, get into an Obama birth certificate discussion. Always ignore this. (I understand the temptation, hell, I'm probably guilty, though I don't remember)

Also, did i give away my gender accidentally? Hope not.

It appears we may not see our friend Mr. DePalma back on this thread, as he now has bigger fish to fry - mirandizing on the battlefield. alas, I must admit I am always curious how he will respond. it is sort of like watching a trainwreck, but I guess I simply can't resist.


Lastly, get rid of the character limits! This series of separate comments to address a point is simply irritating.
 

Ahh. 'Tis true, we have no clear evidence as to nerp's [forgive the familiarity - I'm typo prone) gender. hmm.

I do agree with his/her conclusions about what inclines some threads to go off the tracks quickly and permanently.
 

"Ahh. 'Tis true, we have no clear evidence as to nerp's [forgive the familiarity - I'm typo prone) gender. hmm."

What's wrong with being "bi-Constitutional," accepting nerp whatever his/her gender, on the merits of his/her thoughts?
 

Shag: What's wrong with being "bi-Constitutional," accepting nerp whatever his/her gender, on the merits of his/her thoughts?

Agree completely. Though I'm a tad nercvous even about the simple binary - there seem to be many folks who are neither fish nor fowl.
 

" '. . . neither fish nor fowl . . .' said the wise old owl . . ." according to Hoagy Carmichael's "Doctor, Lawyer, Indian Chief" that bouncy Betty Hutton made popular. But "binary" was not exactly what I had in mind as it doesn't relate to gender swinging both ways. Let's leave it at that, and bi- bi- for now.
 

Here's a great read in today's LATimes:

"Judge Sotomayor, a mythic 'Hispanic'
The supposedly racial term was pushed by Nixon to lump distinct Spanish-speaking groups into one voting bloc. There's no such thing, and the judge should be appointed on her merits."
By Jonathan Zimmerman
June 12, 2009

Consider this paragraph:

"Even worse, the idea of race tricks us into seeing 'Hispanic' as a biological category rather than a cultural one. I frequently do an exercise with my students, asking them how a scientist would identify their race. The most common reply is also the most troubling one: via a blood test. In fact, that would tell you the opposite: We all come from the same ancestor, in East Africa, and we're all mongrels. The blood test does not identify your 'race,' which primarily exists only in our minds."

And there just might be a tad of Genghis Khan in many of us.
 

Eric Alterman's "Think Again: Sotomayor and SCOTUS, Captured on a Carousel of Time," column, June 11, 2009, available at:

http://www.americanprogress.org/issues/2009/06/ta061109.html

provides a rundown of pundit-land on this Latina's nomination.