Tuesday, August 4, 2009 10:00 AM
Judge Sonia Sotomayor has not defended her most widely criticized decision -- the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. -- as a just or fair result.
That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor's decision.
And as I've explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor's three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications -- no matter how job-related and racially neutral -- on which blacks or Hispanics did badly.
Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.
Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.
Because some of this gets technical, I'll begin with critics' simplest rebuttal to Sotomayor's precedent-made-me-do-it claim:
Even assuming for the sake of argument that the Sotomayor panel's decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, which seems to me to suggest that she was satisfied with the ruling.
There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended.
Sotomayor fleshed out her vague testimony about the issue in answers to senators' written questions. She quoted her 2nd Circuit colleague Barrington Parker's concurrence, which she and three other judges had joined, in the 7-6 vote not to rehear Ricci. Judge Parker wrote:
There was controlling authority in our decisions -- among them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y. State Civil Serv. Comm'n [in 1984]. These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.
To unpack the legal language: Title VII is the employment discrimination portion of the 1964 Civil Rights Act. Title VII disparate-impact lawsuits are typically brought by blacks or Hispanics who challenge as discriminatory employers' use of objective tests on which those minorities do poorly. New Haven's ostensible reason for denying promotions to the white and Hispanic firefighters who had done well on qualifying exams was fear of being hit with a disparate impact lawsuit by blacks who had done poorly. And any black plaintiffs would indeed have had a prima facie disparate-impact case, which is legalese for proof that blacks had done much worse on the tests than whites.
But Judge Parker gave short shrift to the fact that even when plaintiffs have a prima facie case, an employer such as the city "could be held liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative," as the Supreme Court stressed in Ricci.
In addition, Parker's reading of both Hayden and Bushey is conspicuously overbroad. Their facts (especially Hayden's) were quite different from those of Ricci. And Bushey has been undermined by subsequent Supreme Court precedents and legislation.
That's why Judge Jose Cabranes, in the main dissent from the 2nd Circuit's 7-6 denial of rehearing en banc, began:
"This appeal raises important questions of first impression" -- meaning questions not controlled by precedent -- "in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices."
The question at the core of the case, Cabranes said, was: "May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race neutrality, on the ground that the results of the examination yielded too many qualified applicants of one race and not enough of another?"
This and other questions raised by the case, Cabranes continued, were "indisputably complex and far from well-settled" and "not addressed by any precedent of the Supreme Court or our Circuit," including Hayden and Bushey.
Ricci differed from Hayden in three critical respects. First, as Cabranes explained, Hayden had approved Nassau County's "race-conscious design of an employment examination," which was achieved mainly by eliminating tests of cognitive skills. Ricci, on the other hand, involved "race-based treatment of examination results" (emphasis added) to override local civil service laws under which promotions are virtually automatic for the firefighters with the best scores on job-related oral and written tests.
Second, Hayden stressed that the white plaintiffs "cannot establish that they were injured or disadvantaged" by the Nassau County test's race-conscious design. The Ricci plaintiffs were very clearly injured: They were denied promotions that they had done everything possible to earn under New Haven's civil service laws, and thus were "deprived of the pursuit of happiness on account of race," in the words of Washington Post columnist Richard Cohen.
Third, Hayden upheld the Nassau County exam's black-friendly design in part "to rectify prior discrimination" by the county against blacks seeking police jobs. Ricci involved no claim of prior discrimination by New Haven against blacks.
Bushey was a lawsuit by whites challenging New York State's race-norming of scores -- by substantially raising each minority applicant's score -- on a qualifying exam to become a correction captain. The 2nd Circuit's mixed ruling in the case was entitled to little or no weight as a precedent in Ricci for at least four reasons:
• While Bushey held that the state could use unspecified "race-conscious remedies" to avert a lawsuit by minorities who had done badly on a test, the 2nd Circuit ordered further proceedings to determine whether the race-norming remedy chosen by the state went too far, and violated Title VII by "trammel[ing] the interests of nonminority candidates." In Ricci, the Sotomayor panel gave no weight at all to the interests of non-minority candidates.
• In a key provision of the 1991 Civil Rights Act, Congress banned the sort of race-norming that the state had used in Bushey. This provision stated broadly that employers may not "adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race." Indeed, by throwing out ("altering"?) the results of its test, New Haven arguably violated the 1991 provision, as well as others, in Ricci itself.
• Bushey noted that the white plaintiffs' initial claims that their constitutional rights had been violated "are not before us," because on appeal they had relied solely on their Title VII claims. In Ricci, "significant constitutional claims... of first impression [were] at the core of this case," as Cabranes wrote. The Sotomayor panel completely ignored them.
• The high-scoring firefighters' constitutional claims in Ricci were especially strong because landmark Supreme Court decisions in 1989 and 1995 had washed away the foundations of Bushey and another 2nd Circuit decision cited by Sotomayor defenders, Kirkland v. New York State Department of Correctional Services (1980). The 1989 and 1995 decisions held for the first time that (respectively) state or federal favoritism toward blacks is just as suspect under the Constitution as favoritism toward whites. "Any preference based on racial or ethnic criteria must necessarily receive a most searching examination" and be struck down unless "narrowly tailored" to serve a "compelling" governmental interest, according to the 1995 decision, Adarand Constructors v.Pena.
The justices' constitutional rulings seem quite contrary to the 2nd Circuit's approach not only in Bushey but also in Ricci, in which -- Cabranes suggested -- Sotomayor and her allies "took the city's justifications at face value," ignoring strong evidence that its decision to dump the test scores was driven by racial politics, not legal principle. The result, Cabranes said, was that "municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome -- i.e. failed to satisfy a racial quota."
Later, in the Supreme Court's June 29 majority opinion in Ricci, Justice Anthony Kennedy said it was unnecessary to address the firefighters' constitutional claims because their Title VII claims alone were sufficient to win the case. But Kennedy stressed that there were "few, if any, precedents in the courts of appeals discussing the issue."
The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.
martin knopfman
Wednesday, August 5, 2009
It would have been quite easy to understand Sotomayer without the hearings and without the testimonies, simply by reading or listening to what Obama said that he wanted in a judge, and by watching how he voted.
“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges”.
When it comes to the selection of Supreme Court nominees Obama disagreed with fellow Democrats over the selection of Justices Roberts and Alito and voted against their confirmation in spite of their excellent legal credentials.
http://tinyurl.com/nopapertrail
The above was reported in the latter part of 2008 so why are people so surprised?
Martin
Ken
Wednesday, August 5, 2009
The lack of intellectual curiosity displayed by the 7 judges on the 2nd Circuit is astonishing, Sotomayor included. Here was a chance to rule on a case that actually mattered constitutionally and they took a powder. They completely ignored the obvious juxtaposition of the 14th Amendment and Title VII as they apply to this case (pointed out by Cabranes). While the Supreme Court's majority ruling did not address the issue directly, Justice Scalia did mention that it will eventually be settled at some point. Perhaps by then Justice O'Connor's prediction of the end of affirmative action will be realized. Either way, Jose Cabranes seems like the best pick from the 2nd Circuit for the Supreme Court based only on the reading of this case. It's too bad identity politics got in the way.
Jason Keuter
Wednesday, August 5, 2009
Very nuanced analysis that obscures some pretty pervasive and troubling realities: racial bias against blacks is eliminated by removing cognitive skills from tests? In terms of disparate impact of civil service exams, I would like to see some examples of "racially biased" questions. I suspect few can be provided. The idea of racially biased tests is oft-repeated bull. Tests discriminate between the knowledgable and skilled and the ignorant and unskilled. Further, they prevent discrimination and influence peddling.
Solomon
Wednesday, August 5, 2009
To Ken:
Here are some examples of racially or class biased questions. (1) A couple has three children. How many bedrooms at minimum should be in the home? The answer comes from experience. Rich people will reason one for each child and one for the couple. Poor people may reason one for all three children and one for the couple.
(2) During a regatta, the winning boat covered 1000m in 5min, find the average speed of the boat? Some say because the poor do not do regatta, they will be unable to answer the question. There could be some truth there because unknown words may throw off thinking.
RRD
Wednesday, August 5, 2009
Solomon
You are being facetious?
fms
Wednesday, August 5, 2009
I am White and grew up in the jersey city city housing projects,....I don't know what 'regatta' means. but i would still answer the question with '12,000 m per hour'.
fbanta
Wednesday, August 5, 2009
The underlying issue is obviously "equal treatment under law". For two generations we have been pretending that it's okay to suspend that concept to presumably compensate for centuries of discrimination.
Today, we see clear results of those ill-conceived compensation programs. We have a president who has no understanding of our Constitution (imagine what he must have taught all those years); no understanding of economics or economic history; no understanding of how business operates; no appreciation of what it means to be an American; no understanding of the positive influences that America has offered both directly and indirectly to the direction of the world for the past 200 years; and no concept of the self-policing process of improvement created by unbiased competition.
We have a Supreme Court nominee who by her own words and actions would be considered both a racist and a sexist if she were a Caucasian male. Every ruling of hers that has been appealed to the SCOTUS has been overturned and 60% of those reversals cite her for misrepresenting the law. Yet she clearly believes that her wisdom with respect to the law exceeds that of any Justice who has gone before; and appears headed for confirmation by a Congress that has no understanding of the Constitution or their responsibilities there under.
We have legislators that somehow believe that "hate crime laws" bear some resemblance to justice.
We have once hallowed ivy-covered halls of learning that fail to educate regarding truth, justice or the American way.
We have a press that has abandoned all pretense of objectivity. Have they failed the responsibilities traditionally expected of the 4th Estate because they believe there are different standards applicable to newsmakers based on race, ethnicity, religion, gender, or sexual orientation? Or is it because are they populated by writers with no concept of objectivity or truth?
It appears that we have raised two generations of minorities that fervently believe that "the rules" don't apply to them; that they are superior not because what they have accomplished, but because of their race, ethnicity or gender alone.
It appears that our "chickens come home to roost". See where un-Constitutional government interference has led us.
Solomon
Wednesday, August 5, 2009
RRD & FMS
No RRD, I am not. During the debate about racial bias on tests, the two questions I cited (or similar questions ) were raised as examples of biased questions. And FMS, you are right that knowing the meaning of regata should not be necessary to answer the question, but there were objections along that line. The point made was that unfamiliar words would add extra stress. There might be something to that.
jrclark
Wednesday, August 5, 2009
All good comments above, except the idiotic attempt to provide examples of "biased" questions. what a pathetic comment.
In addition to all of the big comments made above, as I lawyer I offer one small one. Suppose you are a federal circuit judge and as a member of a 3 judge panel you issue a ruling and that a request is made for en banc review (review by the entire circuit). Suppose further that after listening to what the rest of the circuit thinks, you realize that a large number of the other judges believe that the case should be reconsidered. Suppose even further that you are the deciding vote, that if you change your vote the case will be reheard.
Obviously, the only intelligent, reasonable, sensible, honest or fair thing to do is to vote to rehear the case. If a great number of your highly esteemed fellow judges think something was missed or wrongly decided, it is the height of arrogance and hubris to vote against rehearing. This would be even more true when your original panel decided the case per curiam, as was done here. In a per curiam opinion the panel is essentially dismissing the case as obvious and the panel provides only a summary opinion.
Historyshowsus
Wednesday, August 5, 2009
Solomon, the question about bedrooms is hardly representative of standardized tests and purposely ignores the fact that tests are associated with study material. If that question actually was used in a standardized test then you can bet that somewhere there is material that the perspective candidate is supposed to know, FOR THEIR JOB, that would give him the right answer. If he had studied the material he would know the answer. Standardized tests do not pull info out of the ether and require you to answer them. Your post clouds the issue and misdirects the fact that studying what you need to know FOR YOUR JOB generally prepares you for a test that is related to your job.
Regarding the second question I would submit that if a candidate cant see around the unknown word "regatta" so he can concentrate on the word boat (that is used twice) then he has no business getting the answer right and is unsuitable for advancement. Your logic is typical of people trying to level the playing field of results rather than the playing field of opportunity.
Pelagos
Wednesday, August 5, 2009
Solomon:
Question 1 is failing the sniff test. Among the endless examinations I have taken in my life, I have never had the occasion to offer my opinion on a math question. "How many bedrooms at minimum should be in the home?" Can someone enlighten me as to which branch of mathematics would lead me to the correct answer to this question?
This smells to me like a question that has been modified to suit the needs of the argument. Of course, there were only two children in my family, so I wouldn't really know...
INTJ
Wednesday, August 5, 2009
To Solomon:
The test in the Ricci question was based on job knowledge, was vetted by an independent testing company, and by senior black firefighters on the New Haven force. To argue that there were "unfamiliar words" that would unfairly exclude anyone is just silly. And the answer to the question ( despite the fact that I grew up poor, on the wrong side of the tracks, without ever setting foot on a sailboat until I was 37) is 3.33 meters per second, or about 6.48 knots (7.46 MPH). That question is a straw man, because understanding the term "regatta" is not required to determine the answer to this basic math problem.
Simon
Thursday, August 6, 2009
To illustrate what a load of hooey Solomon's "biased questions" are, here's something from today's Steve Sailer blog that quotes an old Different Strokes episode with virtually the same question -- from 1978!
If you added an audience applause track, Simon’s most sententious speeches would sound like they were lifted from a Norman Lear sitcom, such as 1978’s Diff’rent Strokes. Remember the episode in which an entrance exam’s cultural bias keeps Arnold out of his rightful place at an elitist prep school?
Plexiglas
Wednesday, February 2, 2011
I personally do not believe that 18 people can "fit" in a house... or sleep for that matter... I don't care how sleep friendly your duvets are but this seems extreme (for me at least). Any ideas how the process ended ?
sd34g
Wednesday, November 2, 2011
I personally do not believe that 18 people can "fit" in a house... or sleep for that matter... I don't care how sleep friendly your duvets are but this seems extreme (for me at least). Any ideas how the process ended pasimalir