The GOP would be crazy to attack Sotomayor... but they will
Would the Republican Party, already shrinking away to nothingness under the weight of a demographic tsunami, dare to oppose what would be the first Hispanic and only the third woman to serve on the Supreme Court? Would they risk alienating the multiple interest groups who will be galvanized by the nomination of Judge Sonia Sotomayor, including not only Latinos and women, but also Catholics (not to mention New Yorkers and Yankees fans...?) The short answer is no, they wouldn't, unless of course they are collectively insane. And yet, the arguments against Judge Sonia Sotomayor are already gathering, and none of them is helpful ... to the GOPI:
1. She's "temperamental." Not that anyone knows what that means, but Media Matters caught the neocons at TNR attacking Sotomayor without even pretending to do anything more journalistically rigorous than quoting random people who clearly aren't fond of her. Unfortunately for the right, attacking Judge Sotomayor's "temperament" will ring awfully familiar, and not in a good way, in the ears of women, who are used to hearing their strength conviction read by some old school dudes as a tendancy toward tantrums.
2. She doesn't like white people. Righties have already begun dissecting Sotomayor's membership in Hispanic organizations at Princeton and her general empathy for fellow Latinos as somehow disqualifying. John Perazzo wrote ominously in Front Page Magazine about one of those membership organizations:
The other group to which Sotomayor belonged, Princeton’s Third World Center (TWC), was established in 1971 “to provide a social, cultural and political environment that reflects the needs and concerns of students of color at the University.” A 1978 Princeton publication explained that the TWC had arisen chiefly to address the fact that “the University’s cultural and social organizations have largely been shaped by students from families nurtured in the Anglo-American and European traditions,” and that consequently “it has not always been easy for students from different backgrounds to enter the mainstream of campus life.”Oooh ... sounds subversive ... The other knock on Sotomayor in the race case is the case of Ricci v. DeStefano, the now infamous New Haven firefighter case that raises the specter of affirmative action, "reverse discrimination," and more bluntly, black guys taking white guys' job opportunities away (or in this case, the government doing it.) Sotomayor, who ruled against the white firefighters who filed a discrimination suit after a test they passed was thrown out because from the City of New Haven's perspective, not enough minorities passed, was featured in a Willie Horton style web ad claiming she "didn't give a fair shake to firefighters not promoted on the basis of race." Personally, I think that the city of New Haven was wrong to throw out that test because they didn't like the demographics of the passing scores. But going after Sotomayor on the basis of this racially charged case will only make Republicans look hostile in the eyes of Black and Brown people, something they need no more of at this stage.
3. She's a token. Apparently, Justice Antonin Scalia has been heard to opine that “the next nominee to the Court will be a female Protestant Hispanic”. Funny stuff, Nino. And expect more wingers to complain that Sotomayor is not a white guy, and was selected by the other non-white guy wingers loathe (Barack Obama) on that basis. But again, conservatives do themselves no favors by attacking the fastest growing ethnic and voter group in the nation, in order to placate the dwindling number of Angry White Men, all of whom already vote Republican.
4. She's an "activist judge," (which is code for, she's a liberal.) For this one, the righties say they have videotaped evidence, namely a talk Sotomayor gave at Duke University in which she dared to say this:
“All of the Legal Defense Funds out there — they’re looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t “make law,” I know. [audience laughter] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [audience laughter]”To this I'd have to say, so what? The judge properly asserted that the courts don't make law. But she was guilty of a bit of "truthiness," in that in many ways, our courts do set policy. From Brown v. Board, which undid racial separation in schools, to Roe v. Wade, which clearly altered national policy on abortion, like it or not, courts, by interpreting the laws made by legislators, do in effect, make policy. Today, for instance, the California Supreme Court will decide if voters in that state had the right to decide that state's marriage laws. As inartful as Sotomayor's statement about the power of our court system may have been, it was in essence, true, and hardly disqualifying. Besides, since the right has already charicterized Barack Obama as a Marxist, I'm not sure there's room to place Sotomayor much to his left.
Most importantly, Judge Sotomayor is bringing a heavyweight resume to the table: 17 years on the federal bench, educated at Princeton and Yale, editor of the Yale Law Review (President Harvard Law Review had to love that), not to mention her incredible life story, rising from the projects in the South Bronx to potentially, the highest court in the land. Given her qualifications, and her back story, the right bears a hell of a lot at risk in potentially attacking this nominee. Whether they do it anyway will tell you a lot about the mental state of the Republican Party and the conservative movement.
Meanwhile, the GOP has tried to stop Sotomayor's ascent before, namely, back in 1998:
Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.At that time, Pat Leahy described Republican opposition to her this way:
''Basically, we think that putting her on the appeals court puts her in the batter's box to be nominated to the Supreme Court,'' said one senior Republican staff aide who spoke on the condition of anonymity. ''If Clinton nominated her it would put several of our senators in a real difficult position.''
'Their reasons are stupid at best and cowardly at worst,'' he said.Let's see who's hiding in the cloakrooms this time.
''What they are saying is that they have a brilliant judge who also happens to be a woman and Hispanic, and they haven't the guts to stand up and argue publicly against her on the floor,'' Senator Leahy said. ''They just want to hide in their cloakrooms and do her in quietly.''
Cross-posted at The Reid Report.
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Why not just sayshe/he is absolutely qualified for the job?
Sotomayer has excellent qualifications. Nuff said.
" At that time, Pat Leahy described Republican opposition to her this way:
'Their reasons are stupid at best and cowardly at worst,'' he said.
''What they are saying is that they have a brilliant judge who also happens to be a woman and Hispanic, and they haven't the guts to stand up and argue publicly against her on the floor,'' Senator Leahy said. ''They just want to hide in their cloakrooms and do her in quietly.''
And this:
"Given her qualifications, and her back story, the right bears a hell of a lot at risk in potentially attacking this nominee. Whether they do it anyway will tell you a lot about the mental state of the Republican Party and the conservative movement."
It's a done deal, Joy-Ann.
Rated and Thank you.
Supreme Court justices need to act on legal facts, not emotion or what THEY may feel is an injustice. The law is the law. Since the Executive branch and Congress can't seem to understand the rule of law, we need to make sure the Supreme Court gets it. (Regardless of their race, sex or party affiliation)
I doubt the Republicans will make a big thing of this one. They have almost nothing to win, because unless there is a huge bomb hidden, she will be confirmed no matter how much they fuss.
I say they give this a pass...with just token opposition.
Additionally, Barack Obama is President of the United States as a direct result, in part, of that selfsame Idealism.
We agree that "the person who should get a job, any job, should be the person who is most qualified ..."
... However, shouldn't presidential nominations, at the very least, attempt to reflect the make up of the nation including race, gender and orientation provided the qualifications are stellar? So far, that hasn't happened because we have not been truly without prejudice in this country, have we?
Remember: Since it's inception, until a mere 30 years ago, the high court was made up entirely of --white-- males. Takes time to break through ceilings....
Kind of Blue: I heard the pundit in question. Interesting, huh? And I'll bet that same pundit thought Harriet Miers was the Albert Einstein of jurisprudence.
What I do find disturbing is she will be the sixth Catholic on the court. Less than a third of the US population is Catholic, but yet two thirds of our highest court will be.
Also, she isn't that liberal despite the projected Republican talking points. Evidently she sides with the government more often than not in criminal cases. After two horribly conservative Bush jr. picks, I had hopes for a liberal not a right of center judge.
As an aside, I cant help but wonder how Arlen Specter would have treated this nominee if he still held the position of the #1 Repub on the Judiciary Committee.
@Kind of Blue- Hilarious that a Repub would attack ANYONE'S "intellectual ability". If the GOP has any intellectuals, they're hiding from the Luddite Rwing, lest they be burned at the stake.
@rwnutjob
If you had examined the New Haven case, you might understand why it got kicked upstairs to the USSC. It's not as simple as a Limbaugh-ish analysis would have it. Hell, is anything?
So it sounds like what you're saying is, "even if Sotomayor is wrong to favor racial quotas over merit, we can continue to let her do so by accusing her detractors of racism." Is that really a winning position?
Either way, it would have been appealed, and the 'no decision' ruling was an easy way of getting it where it should be and was argued- before the USSC.
It always helps to read the actual rulings......
It amazing to hear the ones say that for judges it should make no difference what your gender or color is. It's mostly white men saying that, and some delusional white women. God, how hard is it to figure out that people from different backgrounds have a different perspective? Or that that's valuable.
Thank God for a very belated leap toward a bit more diversity on the court.
As to the so-called "talking points" on the TWC: yeah, so what? It was the early 70's. Organizations advancing different groups whether they were female, ethnic, nationality, etc. proliferated on campuses. They were forums. They were activists. Hooray for them. That's what the 70's were all about. That's why it was such a stimulating time. Great change was fermenting and it was a wonderful time to be involved, aware and engaged. I the early 70's the exception was people of color in law schools, ivy league schools, etc. These people paved the way for it to become a normative part of our higher education environment and our society. If any naysayers want to try to use this as a club, then to hell with them.
Turley is a legal scholar at GWU. I am pretty sure he is NOT a Republican; he has been beating the drum on Rachel Maddow's show for quite some time now to prosecute the Bush administration for war crimes.
He is a strong advocate for civil liberties and upholding the Constitution.
I have been a fan of his and generally appreciate his commentary. Thus, I was shocked and disappointed to hear his comments regarding Sotomayor this morning. Further, I can't think of any of the current Justices that I would consider an "intellectual heavyweight."
From Slate:
Ricci is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws. In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.
In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.
Faced with these complaints, which translated into both political and potential legal fallout in a city that is nearly 60 percent African-American, New Haven withdrew its test. But that fueled an intense and also understandable frustration on the part of the white firefighters who'd spent time and money on test-prep materials. They'd succeeded by scoring high, only to be told that now their investment counted for nothing. Frank Ricci is a 34-year-old "truckie"—he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won. Ricci and 19 other firefighters sued New Haven, alleging reverse discrimination, in light of Title VII and also the 14th Amendment's promise of equal protection under the law. They said that New Haven shouldn't have thrown out the test.
The district court judge who heard Ricci's case ruled against him and his fellow plaintiffs. They appealed to the 2nd Circuit, the court on which Judge Sotomayor sits. In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge's ruling without adding their own analysis. As Judge Jose Cabranes put it, in protesting this ruling later in the appeals process, "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."
Really? Amazing? I'll say that proudly. In fact, I'll say it should make no difference what gender or color you are for any government job. Equality is based in laws, not in personal preferences. Should black people be happy that they have Clarence Thomas sitting on the bench, bringing a different shade of skin-tone to the court?
Please. The answer to racism is not racialism.
Should black people be happy that they have Clarence Thomas sitting on the bench, bringing a different shade of skin-tone to the court if he is also inspiring their ire by voting against what many perceive to be their collective interests?
The "no ruling" ruling was based on law and precedent.
Let's examine your first comment:
"The New Haven firefighter case is the issue. Had the races been reversed the left would be screaming bloody murder instead of just ignoring her actions. The logical and rational choice is to award the jobs to those with the highest test scores. The fact she could not understand/give a crap about this basic concept absolutely should disqualify her.
Supreme Court justices need to act on legal facts, not emotion or what THEY may feel is an injustice. The law is the law. Since the Executive branch and Congress can't seem to understand the rule of law, we need to make sure the Supreme Court gets it. (Regardless of their race, sex or party affiliation)"
With your second paragraph you decry rulings that are based on emotion, and not the Rule of Law.
In your first paragraph you denounce Sotomayor because she (and the 2 other judges) didn't ignore the Rule of Law to make a ruling based on emotion.
I hope ya don't mind if I kick back and let you destroy your own argument.
Which means you can get ready for the filibuster.
When you download and read the Sotomayor et al ruling, they don't make any written ruling, they just affirm the district court judge.
"UPON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED."
There were 3 judges — two female, one male. The other two judges were not selected for a Supreme Court vacancy however. They go free at this time.
" At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15th day of February, two thousand and eight.
Present: ROSEMARY S. POOLER,
ROBERT D. SACK,
SONIA SOTOMAYOR,
Circuit Judges"
You wrote: “ Sotomayor did not rule based on law. All affirmative action legislation is based on emotion. (Although I understand the intent)”
Is that a fact…or just your take on things. I honestly do not know…and I am wondering about the underpinnings. If you are a legal scholar and know there is nothing in law to sustain affirmative action…I’d really like to understand it.
Bottom line is, trying to figure out why a judge did something and opining thereon is an old hobby for lawyers and pundits.
I just moved to the DC area and am in a looong waiting period for a final interview, so I am hoping to attend the at least some of the confirmation hearings in the peasant section.
Whatever case law backs up affirmative action is crap in my opinion. No, I'm not a legal scholar, but I know BS when I see it. A private employer should be able to hire and fire who they wish.(as should a public employer) I do not know where this "sense of fairness" garbage came from. If all business were owned by women who only hired women and the men either had to hook up with a chick for survival or starve to death, then that's how it is.
I've been in retail and in business long enough to know that to stay in biz you hire the best employees. For example, the fact is that it costs more to employ a female than it does a male (mainly, ladies cost more to insure and there is a statistically greater chance of some type of lawsuit originating from a female worker than a male worker)...........all other things being equal, in order to keep a competitive advantage, I might hire only men.
None of us asked to be here. Life is cruel and unfair...and having activist judges try to legislate fairness and equality is suicide for America.
Application of the law to the facts is the job of judges.
--Elizabeth Camp
Really? One would think so, yes? The Supreme Court can determine the constitutionality of a law. They have been asleep at the wheel on numerous laws that congress has passed.
"Supreme Court justices need to act on legal facts, not emotion or what THEY may feel is an injustice. "
...is nonsensical. The article is a thorough outline of Chief Justice Roberts' history and opinions, particularly his emotional response to race issues. All the justices bring "emotion" and "what THEY may feel is an injustice" to their decisions. Ginsberg brings a feminist outlook; Scalia brings (sometimes) libertarianism and (always) homophobia; Clarence Thomas brings his set of resentments, and so on. They're human, after all.
And all pundits and bloggers will tell you that any decision they agree with is based "on legal facts, not emotion," while decisions they don't like are "emotional." T'was ever thus.
Some additional background on the case via the Supreme Court briefs:
Background
In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. (“IOS”) to develop exams, which were administered to qualifying applicants.
Pursuant to a City regulation known as the “rule of three,” once test results are “certified,” the Department must promote from the group of applicants achieving the top three scores. Immediate application of the “rule of three” to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants’ pass rate on the lieutenant exam was approximately half of the rate for white applicants – a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams’ results.
Because of these outcomes, the City’s independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed “adverse impact” and that he could design tests with less disparate results and better measuring the jobs’ requirements. He also conceded that the City’s tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.
A City official testified that if the board chose to certify the results, then the city could be subject to a disparate impact suit from the minority applicants who did not qualify for promotions. Yet, his testimony may have been contradicted by IOS’s “technical validity report.” There is some evidence to suggest IOS was prepared to issue such a report, which might have “establish[ed] the City’s lawful use of the test results.” However, the City argues that IOS never offered to prepare the report nor would the report have “proved” the legality of the test.
Because the exam review board split evenly, 2-2, on whether to certify the exam results (with one member recusing herself based upon a conflict of interest), they were not certified.
A group of white firefighters, one of whom is also Hispanic, who scored some of the highest results on the administered exams, filed suit against the City and its officials, alleging that the City’s action violated Title VII and the Equal Protection Clause. On cross-motions for summary judgment, the district court granted the City’s motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII’s disparate impact prohibition.
On appeal, the Second Circuit initially affirmed the district court’s opinion summarily but subsequently issued a per curiam opinion that praised the district court for a “thorough, thoughtful, and well-reasoned opinion” and concluded that the City could not be held liable for its failure to certify because it “was simply trying to fulfill its obligations under Title VII.” Three days later, the Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel’s judgment and highlighted the issue for the Supreme Court.
Petition for Certiorari
After the Second Circuit issued its initial summary order, the white firefighters filed a petition for certiorari. However, after the panel issued its per curiam opinion, the same firefighters, now represented by former Texas Solicitor General Greg Coleman, filed a second cert. petition, claiming that they feared the first petition had been rendered moot. The Court consolidated the cases and granted cert., largely using the questions presented by the first petition; however, because the second petition better tracks the counsel who wrote the merits briefs and will argue the case, this post focuses on that petition.
The second petition for cert. begins by contending that the Second Circuit’s decision creates a split over when to apply strict scrutiny. According to petitioners, strict scrutiny always applies to racial classifications, and the Eleventh Circuit has held that an employer’s refusal to create positions because of the applicants’ race is a race-based classification. Here, petitioners explain, the City’s refusal to provide promotions solely based upon petitioners’ race similarly should have been subject to strict scrutiny, and the Second Circuit’s failure to do so warrants certiorari.
Petitioners also characterize the Second Circuit’s decision as one that creates an exemption to the Equal Protection Clause for compliance with Title VII. Citing a series of cases addressing racial quotas, reversing summary judgments in favor of employers, and holding that “top-scores” on employment exams must be promoted, petitioners contend that four other circuits have held that compliance with Title VII cannot justify “race-based preferences.”
Raising the specter of racial quotas, petitioners suggest that the Second Circuit’s opinion will allow for racial balancing, which the Court rejected in City of Richmond v. Croson (1989) and Grutter v. Bollinger (2003), and permit governmental entities to engage in racial politics under the guise of complying with Title VII. This, petitioners argue, provides another reason to apply strict scrutiny, as it enables the courts to “smoke out” racial motives.
Petitioners also contend that the Second Circuit opinion misinterprets Title VII itself. Citing the Court’s opinion in Furnco Construction Corp. v. Waters (1978), they argue that Title VII only permits employers to remedy proven disparate impact – a standard that would require proof that an equally valid and less discriminatory employment test was available. They contend that three other circuits have held that an employer may not refuse to use employment test results based solely on evidence of adverse impact.
Lastly, petitioners argue that § 2000e-2(l) requires employers to honor employment test results. To do otherwise would – as they argue the Fifth Circuit has held – qualify as “otherwise alter[ing]” the results of an employment test, as prohibited by the provision.
Chris Meade, representing the City and its officials, disputed petitioners’ claim of a circuit split over the interpretation of Title VII. According to the respondents, this case is unique: although other circuits have addressed what qualifies as disparate impact, they have never considered whether the failure to certify test scores for fear of a disparate impact suit would violate Title VII. Moreover, the Court’s decisions make clear that Title VII intends for employers, like the City, to take voluntary remedial actions to prevent disparate impact.
In addition, by failing to raise it in the district court, respondents claim petitioners have waived the question of whether § 2000e-2(l) prohibits the City’s action.
On the equal protection issue, respondents contend that the sole issue before the Court is whether the decision not to certify employment test results was a racial classification – an issue over which there is no circuit split. Moreover, compliance with Title VII’s demands is a sufficiently compelling governmental interest to justify race-based classifications.
[edit] Merits Briefing
In their brief on the merits, petitioners expand upon the arguments made in their second cert. petition. They argue that all race-based government actions are subject to strict scrutiny. When the City acted to benefit minorities, by dismissing the results of tests that made minority promotions more difficult, it correspondingly denied the white firefighters promotions because they were white – a quintessential race-based government action. Indeed, petitioners note, the City acted solely based upon racially-calibrated test results. Thus, even if the City’s refusal to certify the results was not racially motivated on its face, it should be found to be merely a pretext to deny whites promotions.
Petitioners next contend that avoiding disparate impact cannot be a compelling governmental interest, as this would allow racial balancing and enable employers to “surrender to organized racial lobbies.” Moreover, even if compliance with Title VII were a compelling interest, the City should be required to show “strong evidence” that disparate impact in fact occurred before acting to prevent that disparate impact. Without such a strong evidentiary requirement, compliance with Title VII would become a back door to discrimination. Because the City in this case acted based only upon evidence of disparity in the test results, without proof that better alternative tests existed, it could not satisfy such a standard. And in any event, the City’s action was not narrowly tailored because it could have provided tutoring for minority applicants or increased the availability of study aids to help minority performance on future examinations.
Finally, petitioners contend that the City’s action violates Title VII. Section 2000e-2(j), they explain, prohibits employers from “granting preferences to prevent racial imbalances.” To comply with this provision, the City must prove that its use of race was lawful. Specifically, to avoid Title VII becoming a pretext for discrimination, Title VII should be read as requiring respondents to show a “strong basis in evidence” that disparate impact did in fact occur. Under this standard, summary judgment was inappropriate based upon the facts uncovered during discovery. Finally, for the reasons stated above, and as shown by its legislative history, § 2000e-2(l) prohibits the City’s action.
The United States filed an amicus brief that was technically a brief in support of petitioners – because it argued for remand – but which largely previewed the arguments that would be made by the respondents. The government urges the Court not to reach the § 2000e-2(l) issue because it was not properly considered by the lower courts; if it does consider the argument, however, it should reject it, as the City’s decision not to certify is not an “alteration” of the test results.
Also the government argues that Congress intended for employers to voluntarily comply with Title VII’s demands. Similarly, Congress could not have provided remedies for disparate treatment and disparate impact if it did not intend, following racially biased test results, for employers to act to prevent that disparate impact. Consequently, under Title VII, an employer can reject such results as long as it has a “good faith” belief that its test produced disparate impact.
According to the government, the City’s decision did not, absent evidence of it being a pretext, violate the Equal Protection Clause because it was facially neutral – at most a form of disparate impact itself, without evidence of disparate intent. Even if the Court were to find otherwise, compliance with Title VII is a compelling governmental interest when there is a “strong basis in evidence” that the employer, if it had not acted, would have violated Title VII’s demands. However, the government concedes, because the petitioners have raised a question of fact as to whether the City’s decision not to certify was unreasonable or pretextual, the case should go before a jury.
In their merits brief, respondents repeat many of the Solicitor General’s arguments in starker terms and argue in favor of summary judgment. The brief warns that accepting petitioners’ arguments would “read disparate impact out of” Title VII. Further, a holding that disparate impact cannot be remedied through dismissing test results would turn evidence of disparate impact into a shield for those who benefit from the disparity.
Respondents next assert that employers can reject test results as long as they have a “good faith” belief that the test caused disparate impact. Anything more, respondents cautions, would strip employers of the flexibility that they need to comply with Title VII. The “strong basis” standard proffered by petitioners derives from affirmative-action cases, which are not analogous to compliance with Title VII. But in any event, the City had precisely the kind of “strong basis in evidence” required by that standard: a prima facie case that the City could be subject to liability. There has been no showing by petitioners that the City’s action was unreasonable or pretextual. Moreover, the City’s action did not violate Section 2000e-2(l), which merely limits employers’ manipulation of test scores.
The City also argues that it did not violate the Equal Protection Clause, because its action did not create a racial classification. All exam participants, regardless of race, were denied the effects of their score. At worst, the non-certification had a differential effect, which only requires strict scrutiny if the City also had discriminatory intent, which it did not. In addition, because there is a “strong basis” to believe the tests did not measure proper qualifications, any disparate effect is meaningless, as none of the applicants should have obtained the ranked position they did.
Finally, respondents contend that compliance with Title VII is a compelling interest if – as here – there is a “strong basis” to believe the employment test violated the statute. Congress has long endorsed such remedies for disparate impact. Moreover, if the Court were to find that this was not a compelling interest it would undermine other federal law – which, the Court has suggested, establishes a compelling interest.
=========================
My take on the above is that there were some dicey issues to be considered, particularly in light of the union mandated exams. After reading the brief I have a better understanding of why she and the rest of the Second Circuit did what they did, but in this specific case, after separating the chaff, it is clear in my mind that the test results should not have been thrown out since there was no empirical (just the opinion of a test competitor) evidence the test results were biased. Your take may be different....I'd like to hear it.
The talking head invited to speak on MSNBC last night repeated that white man/brown woman phrase NINE times.
It was 40 year for Moses to find his way out of the wilderness… could be the same for the GOP, maybe more.
-rated
You should all take the forty or so minutes to listen to the court proceedings and come to your own conclusions about the fairness of the test and whether the decision to throw it out was a judicious one.