The Ricci case

[calfoxwc]

Cal, my response was to you as well. You're not addressing what the law is, what it says, or even seem to be aware of it. Your critique isn't of Sotomayor. It's of something else. You don't have an opinion on what Sotomayor did. You simply have an opinion that's irrelevant to any discussion of the Ricci case. Heck

*******************************************************

Oh, so I'm not correct because I didn't quote the law as it reads? How the heyl should I know the legit

 

reading of the law? THAT is YOUR CYA ? ROF<LMAO, AOTP !!!!!!!!!!!!!

 

Of course my critique is of Sotomayor - I critiqued her decision, since obviously you know what her decision was,

 

with my own appraisal of the situation.

 

Consider an exerpt of what I wrote:

 

 

"And, if , legitimately, no fault is found with my decision, doesn't that certainly reflect on Sotomayor's

lack of qualification for the U.S. Supreme Court, the highest court in the land?

Let's test it logically:

If you support Sotomayor's decision, would you still support it if Ricci had been a white firefighter, and

the rest of the firefighters were black?

In either case, MY solution is still valid, and I'm not a legal beagle nor a judge."

 

Sotomayor sided with Ricci, and against the white firefighters, in a bigoted attempt to favor her own

race/culture.

 

She favors Hispanic women, and SAID that being a Hispanic women, should surely enable her to make

better decisions than a white male.

 

Your reply was not supported by any particulars, just a cya generalization that makes no sense whatsoever.

 

Actually read what I wrote. If you don't understand any complexity there, just point it out, and I'll

 

be happy to explain and elaborate. ANYBODY on this forum should be able to help you.

 

Do you not think that Ricci was discriminated against because he did poorly on the test because he

 

was, as stated, dyslexic? Do you think that penalizing the white firefighters who were innocent of any wrongdoing

 

was appropriate? Sounds to me, despite your lofty perception of your brilliance, you are your own worst enemy here.

 

You could not find fault with my appraisal, but you will say you did so you don't have to back it up?

 

And you call anyone ELSE names and belittle them?

 

Face it, Sotomayor was predisposed to side with Ricci an AGAINST the white firefighters out of personally

 

held racist ideas that SHE would call "affirmative action".

 

Truth is, she worked to stop a CONSERVATIVE HISPANIC... she's a dishonest political hack, Heck, imho.

 

And, apparently she knew she had better not sign her decision - because it sucked and was out of line, as

 

I explained in detail.

 

 

[Westside Steve]

Anybody see wormtongue Specter on Fox News Sunday?

Pretty funny as he weasled around the decision without daring offend his new bosses.

"Damned with faint praise."

Well kinda new bosses.....

 

WSS

[heckofajobbrownie]

Do you agree with my post, Steve? Aren't you really upset with that section with the Civil Rights Act, not Sotomayor's decision?

 

Was she not following what that law says?

 

When she deferred to the lower court's ruling, isn't that an example of her not being an "activist judge"?

 

Here's Walter Olson, a senior fellow at the conservative Manhattan Institute:

 

"I would not be surprised to learn that Sotomayor's views on reverse discrimination differed widely from my own, but still note that it's vaguely incongruous to treat as Exhibit A for a charge of judicial activism an instance in which the judge and her colleagues ducked a case."

 

[calfoxwc]

<H3 class=storytitle id=post-13292>Slate’s Awful, Awful Defense of Sotomayor’s Ricci Ruling</H3>Someone drew the short straw over at Slate yesterday. The center-left contrarian e-magazine put a man named Richard Thompson Ford in charge of defending the Sonia Sotomayor-approved ruling in the now-famous Ricci v. Destefano.

 

New Haven’s decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional. Ricci’s claim is that the city’s effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).

 

This argument would undermine an important part of modern civil rights law. Some of Sotomayor’s critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn’t a thing of the past yet. In fact, we haven’t corrected the lingering effects of racism that is in the past. It’s precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law.

 

Alright, so in other words, the typical equality-of-results argument for affirmative action. The question, of course, is whether there was any inherent racial bias in the test, which is silly on its face (a Hispanic man was part of this lawsuit, if you’ll recall). The point here seems to be that there is simply no reason whatsoever, if the test was fair, that the results wouldn’t correspond proportionally to demographics. Quite the proposition, Mr. Ford.

 

There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions—choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group

for no good reason

. New Haven claims that the test it tossed out had a disparate impact.

 

Well, there actually was a good reason: they didn’t do well on the test.

 

The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test.

 

Is he seriously contending that the exam itself caused the racial disparity in results? Where is the evidence for this? No one, to my knowledge, has contended that the test itself was somehow biased toward whites (which is almost always a dubious assertion, anyway). The chief complaint seems to be that simply not enough blacks performed optimally.

 

Conservatives think the law against disparate impact discrimination does more harm than good.

 

Straw man erected, straw man shot down.

 

Actually, that’s not what we think. We think that if the blacks didn’t want to see racial disparity in the results, they should have performed more strongly on the test.

 

But, properly applied, disparate impact law doesn’t excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can’t just put a “women need not apply” sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias.

 

Perhaps. Was this the case in the test? No answer.

 

Perhaps New Haven’s black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test—six months off work to prepare and $1,000 on tutoring.

 

Now here’s a brilliant argument: Ricci had it coming for studying so hard!

 

Ricci isn’t attacking the timing of New Haven’s decision; he’s attacking the city for considering the racial impact of the exam. And that’s exactly what disparate impact requires an employer to consider. Ricci’s position threatens to burn down one of the nation’s most important civil rights laws. Even in the improved racial climate of the Obama era, that should set off alarms.

 

And so the piece concludes. A truly pathetic amalgam of logical fallacies, tortured reasoning, and question-begging. It really has to be wondered: does Ford believe a word he’s writing, or did he just draw the short straw?

 

I’ll leave you with a quote from a superior mind:

 

“The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” - Chief Justice John Roberts

 

________________________________________________________________________________

________________________

Alex Knepper can be contacted at apkkib@aol.com.

 

 

[heckofajobbrownie]

Hey, you see? That's an argument against Sotomayer's ruling! Well, not so much. More of an argument against Slate's defense of Sotomayor's ruling. But I'll take it!

 

It wasn't yours, and it wasn't Steve's, but it's a start.

 

Of course, I could post a bunch of argument for Sotomayor's ruling too, but what's the point of that? You're working backward from "I don't like Sotomayor's ruling" to finding more qualified people who agree with you. That's just a Google search.

[calfoxwc]

I thought it was an excellent article, GGG, but my point was more elementary, because I'm a computer guy and a farmer.

 

...no time to spend a week researching, interviewing, etc, to really write a profoundly persuasive and blistering take

 

on why Sotomayor was wrong. I never said I was qualified to give an expert opinion, you didn't ask for one, and rightly so.

 

Truth is, we'll see before Sotomayor, even if/when she gets to the Court, before she gets there...

 

what the Supreme Court rules - against Sotomayor's decision, or with it.

 

I predict it will be against Sotomayor. My point still stands - it is not valid to discriminate against the white firefighters,

 

in order to make a freaky justice for Ricci, who was discriminated against. BUT, I don't see it as racial, I see it as

 

discrimination on the basis of his learning disability. Should have been read to him, since it was determined that the written test

 

would be the determining factor.

 

My take, my "decision" supports all the firefighters involved, hurts nary a one, and gives the promotion to all, figuring

 

that Ricci could pass an oral exam.

 

Which is, imho, far superior to Sotomayor's decision, and SHE is a judge.

 

She must not be a very smart one, I figure, unless you consider me a super intellect.

 

Don't answer that. @@

 

 

[Mr. T]

I think her decision sucks because there was no determination made on the "racial equality" of the test (whatever that really is). Her decision was made on an assumption (that the test must have contained an element of inequality for all 19 to fail). I can just as easily assume that all 19 black firefighters were idiots (or ill-prepared, if it helps you sleep better at night).

 

 

This is what bothers me about Soto:

 

It would be merely a gaffe if it weren't for her smug, half-assed apology she farted out after what should be the worst thing any judge could ever say, but nobody seems to give a shit anymore, so fcuk-it. I'll be here waiting on my Ex-ca-lade.

 

 

Nice short video Leg, This just goes to show how she has discredited herself along with everybody else who was at that conference. Judges are to make decisions from laws that have passed and not to create new ones. If she is put in place who will be the first to impeach her?

 

Where are the checks and balances? this is a disgrace to all who uphold the US Constitution as being the supreme law of the land along with the bill of rights.

 

Speculatimng I can see here redefining words in the Bill of Rights and turning them around on the people. What is the defintion of is?

[heckofajobbrownie]

Yes, I know. That clip is completely devastating. Almost as bad as when she said this:

 

"This complete separation of the judiciary from the enterprise of 'representative government' might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well."

 

Oh, wait. That was Scalia.

 

Or when she said this:

 

"In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed."

 

Oh, wait. That was Scalia too.

 

I'm beginning to think you guys are going to come around on Sotomayor. Your arguments against her decision in the Ricci case were baseless, and not directed at her decision at all.

 

The next thing you have (or been told to have) is this quote from this clip. Except that the leading conservative on the court has said the same thing. Twice.

 

So I guess what you're left with is her "wise Latina" quote. Well, if that's all you got out of a 30-year career, that's pretty weak tea.

[Westside Steve]

Yes, I know. That clip is completely devastating. Almost as bad as when she said this:

 

"This complete separation of the judiciary from the enterprise of 'representative government' might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well."

 

Oh, wait. That was Scalia.

 

 

He's stating a fact of American law.

 

I must have missed the part where he said that it's commendable when those judges personal prejudices properly take precedence over the intent of the constitution.

 

But I guess a fellow as smart as you can see the underlying meaning....

WSS

[calfoxwc]

I must have missed the part where he said that it's commendable when those judges personal prejudices properly take precedence over the intent of the constitution. Steve

**************************************************

EXACTLY.

 

Where did Justice Scalia ever say it's proper to discriminate racially for your own races' benefit?

 

Does anybody see that anywhere? Or can they find any decisions in his life that directly relates to

 

supporting reverse discrimation or favors whites over Hispanics?

 

Sounds like sad support-Obama's-stuff-no-matter-what, to me.

 

 

[Westside Steve]

Of course, I could post a bunch of argument for Sotomayor's ruling too, but what's the point of that? You're working backward from "I don't like Sotomayor's ruling" to finding more qualified people who agree with you. That's just a Google search.

 

And of course you want to work backwards just NOT from your own position of support.

 

We get it.

WSS

[heckofajobbrownie]

You guys would be mixing the two comments, and then misreading them. The point is that the video posted says nothing that Scalia didn't say himself, and yet is supposed to be outrageous and disqualifying when she says it, and yet perfectly fine when he does.

 

So is the video posted worrisome or not? If so, why aren't Scalia's comments equally worrisome?

 

As for supporting Sotomayor, of the three red flags offered by the opposition I don't see any problem with two of them, and the "wise Latina" statement is hardly enough to get excited over, especially when you look at her record as a judge, which is anything but what you say it is.

 

So yes, I don't see any reason not to confirm her.

 

I posted how she's ruled in cases involving race, and involving racial discrimination. And I posted on the Ricci case. Is there anything in there that you guys think suggests that she's a "judicial activist" who is quietly pulling for her own?

 

Well, go ahead and make that case. Seems to me is all you've got is a statement she made in a speech.

[calfoxwc]

Well, go ahead and make that case. Seems to me is all you've got is a statement she made in a speech. Heck

********************

 

 

Always so convenient - trivialize the opponents' arguments, then say they don't have much merit, so you're "right".

 

There are plenty of Dems who will be taking a critical look at her warped, liberally self-serving views on the

2nd Amendment. And the Ricci decision.

 

 

She was wrong. Word is, if she does get on the Court, she should/will recuse herself on the issue of 2nd Amendment rights.

 

 

And, the Supreme Court may overrule her on the Ricci case.

 

 

THAT should be pretty telling that she is bigoted on issues, and predisposed to make rulings based on racial preference,

 

 

the 2nd Amendment, abortion, and conservatives when you consider she and her Hispanic group worked to stop

 

 

a HISPANIC conservative from being on the Court. She does not have the integrity to be a solid judge.

 

And, when the Supreme Court over rules her on the Ricci decision, she'll look less intelligent and less competent

and less a solid nominee.

 

Face it, Heck - even giving her the benefit of the doubt, Sotomayor is Obama's Harriet Myers. And, the result should

 

be the same.

 

At the Weekly Standard, Michael Goldfarb writes, "[O]n the issue of diversity, Obama seems to have the views of a 21-year-old Hispanic girl -- that is, only by having a black president, an Hispanic justice, a female secretary of State, and Bozo the Clown as vice president will the United States become a true 'vanguard of societal ideas and changes.'"

 

 

[Legacy Fan]

You guys would be mixing the two comments, and then misreading them. The point is that the video posted says nothing that Scalia didn't say himself, and yet is supposed to be outrageous and disqualifying when she says it, and yet perfectly fine when he does.

 

So is the video posted worrisome or not? If so, why aren't Scalia's comments equally worrisome?

 

You find no distinction between "appeals court making policy" and state & district courts "shaping state constitutions" then yes, what Scalia & Soto said are identical.

 

Using the rationale that you can't shape what isn't there already would be the distinction I'd start with, after making the distinction between appeals court & traffic court.

[heckofajobbrownie]

No, I don't see what's so different. In the second example Scalia is talking about courts below the Supreme Court and how they make law. One of those is the appeals court, the other is the district court.

 

Read it again: ""In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed."

 

In other words, sometimes the appeals court rules and the highest court - the Supreme Court - doesn't have a problem with their ruling, so they don't review it. Therefore, the appeals court (or the district court) has "made law."

 

I don't see how they're different at all.

[Legacy Fan]

No, I don't see what's so different. In the second example Scalia is talking about courts below the Supreme Court and how they make law. One of those is the appeals court, the other is the district court.

 

Read it again: ""In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed."

Yes, the precedent of the highest court already exists therefore SCOTUS allows lower courts to interpret the precedent.

 

In other words, sometimes the appeals court rules and the highest court - the Supreme Court - doesn't have a problem with their ruling, so they don't review it. Therefore, the appeals court (or the district court) has "made law."

 

I don't see how they're different at all.

Or they've interpreted an existing law. Which is what I think Scalia is referring to.

[heckofajobbrownie]

I think you've got that wrong. He's saying there are certain things that are not covered by precedent ("since the precedent of the highest court does not cover every situation") and so the lower courts are allowed to make the decision, which affects the law, and assuming the Supremes have no problem with their decision that law will not be reviewed, i.e allowed to stand.

 

Hence, the inferior courts - the appeals and district courts - sometimes "make law".

 

The talking point has met reality, and reality has won.

 

Here's Eric Freedman, a law professor at Hofstra University: "She was saying something which is the absolute judicial equivalent of saying the sun rises each morning. It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals... It is thoroughly uncontroversial to anyone other than a determined demagogue.

 

One element of judging, obviously, is issuing precedent. But if the thing were squarely disposed of by existing precedent they probably wouldn't go to the court of appeals for it. Their lawyers would say, forget it... So this is where you get clarification for cases without precedent.

 

I would be surprised if you got a different opinion from a fair-minded observer in the legal world."

 

[Legacy Fan]

The talking point has met reality, and reality has won.

 

That's fun. But this isn't so dramatic.

 

It's more in the realm of to-may-to v. to-mah-to. Chicken or the egg.

 

But back to the case, which I feel is an example of her legislating from the bench:

 

1. The city originally used testimony from a competitor of the testing agency that provided the allegedly racially unfair test inferring he could create a test that was more fair. I could too if I could lock in a contract with a municipality for testing services. He later conceded that the test itself wasnt necessarily racially unequal. I'm guessing his testimony was thrown out.

 

2. The minority firefighters who were below the eligibility line for this specific promotion were not below the line for another promotion that could arise when it became available. This is a large reason I find the decision of the city to be chicken shit. That and the determination was based on a particular outcome and not the test itself. They're not being discriminated against, they're just impatient. This expectation of instant promotion has become an epidemic.

 

Poor decision by the city. Poor decision on her part. Luckily it only affected one town.

[heckofajobbrownie]

I'm no legal expert, but I believe the testimony from this test taker doesn't matter so much because the EEOC is very specific about what does and doesn't constitute a valid test. In short, no one group (presumably minorities) can be selected at a rate that's less than 80% of the whites. Otherwise, the test is invalid.

 

I believe what Sotomayor said was, while she sympathized with the plaintiffs, that's what the law says, and that's what happened - you only got one minority applicant who passed, clearly below 80%, and so the law says that the city of New Haven can throw out the test and administer another, so long as they do so in a way that doesn't violate anyone else's rights, even if that means taking race into account.

 

Ricci's side argued that scrapping the test and giving another violated his Civil Rights, but neither court agreed with him. They said that as long as the new test was administered fairly, it's okay to create a new one that met the EEOC standard.

 

Of course, what this speaks to is how difficult and arbitrary policies become when you start trying to determine which races are preferred over the others. It's a bit of a mess.

 

But Sotomayor's job is to interpret the statute, not create the policy, though some might disagree that this is her only job. But whatever way you come down on this, clearly what she's doing is not "activist." It's deferring to the lower court decision, and the law as it is written.

 

A judge who scrapped the law would be the activist. And if they believe (and can show) that the law runs afoul of the Constitution, so what if it's "activist"? That's also their job.

 

[calfoxwc]

Heck didn't get "tomato" right.

 

It's "toh-may-ter", the kind you would have owed me a bushel of....

[Legacy Fan]

Right. But New Haven should currently be without a fire department, presuming this wasn't the 1st test ever administered. Maintain the promotions, then create the new test, or scrap the fire department until you get your 4/5 roster. Better than 3/5's I guess.

 

 

Again, the decision was based on results, not the test itself. So I see removing a promotion basing the decision on those who didn't pass versus basing the decision on the content of the test very activist.