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.

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.

You are being facetious?

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.

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.

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.     

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.

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... 

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.

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?

Gary Coleman: My question was even trickier, Mr. Drummond. … Like they asked me how many people could sleep in a house with 3 bedrooms and a double bed in each room.
Conrad Bain: Oh, and what was your answer?
Gary Coleman: 18.
Conrad Bain: 18!
Gary Coleman: Yeah! We know people who get 3 in a bed, 2 on the floor, 6 on the couch, and 1 in the bathroom!
[Audience Applauds]