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Welcome to Washington, Mr. Ricci:

Senate Republicans opted to call New Haven firefighters Frank Ricci and Ben Vargas to testify at Sonia Sotomayor's confirmation hearings in order to score political points against Judge Sotomayor over the issue of affirmative action. Now Judge Sotomayor's advocates are seeking to take Frank Ricci down a notch so as to blunt any effect of his testimony. McClatchy reports:

Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who's at the center of Sotomayor's most controversial ruling. . . .

On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.

Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he's dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised.

Last night, Slate posted "Fire Proof," an article by Dahlia Lithwick detailing Frank Ricci's litigious past.

UPDATE: Here's an NYT profile of the other firefighter testifying, Lt. Ben Vargas.

ruuffles (mail) (www):
Looks like the GOP vetted Ricci about as well as they vetted Palin.
7.11.2009 1:09pm
ruuffles (mail) (www):
And Joe the Plumber. Also.
7.11.2009 1:09pm
Interlocutor (mail):
There is nobody in this story who I think is doing the right thing...
7.11.2009 1:09pm
TaxLawyer:
What exactly is the relevance of Mr Ricci's testimony to Judge Sotomayor's fitness for the office to which she has been nominated? That she was one of 8 (out of 13) Article III judges to have reviewed his case and found it lacking?

If the testimony of every losing litigant in a judge's past (or even of every losing litigant who becomes a prevailing appellant) is of value in a Senate confirmation hearing, then we're in for some long hearings.

Having agreed to let the Republicans use him in this way, he ought to be prepared for the Democrats to respond in kind.
7.11.2009 1:13pm
whit:
ok, so i get it. whistleblowers are good. they need to be protected. UNLESS they are republicans. in which case they are bad. got it.

reminds me of paula jones. sexual harassment laws are good. nobody lies about sexual harassment. women are to be respected. abusers should be punished. except when the harassee (alleged) is a white trash big haired hussie accusing a democratic president. in which case it's bad.

i also find it ironic that lawyers would criticize somebody for being litigious. i could cut the irony with a ladle
7.11.2009 1:13pm
Oren:

What exactly is the relevance of Mr Ricci's testimony to Judge Sotomayor's fitness for the office to which she has been nominated?

That depends whether you think empathy is a job requirement or whether it's pure legal acumen. This is the GOP way of admitting that empathy is an important trait (certainly he's not going to testify about the finer points of Title VII) and that SS's decision did not show very much empathy for his point of view.
7.11.2009 1:16pm
Interlocutor (mail):
Whit, I agree that nobody should be trashing Mr. Ricci or any other individual litigant like this to score political points, but don't you agree with TaxLawyer that his testimony is at best irrelevant to whether she should be confirmed?
7.11.2009 1:16pm
PeteP (mail):
Typical sliming from the left. Despicable, and irrelevant to the fact that Sotomayor's decision was grossly wrong, and is now history gratis SCOTUS.

Ricci is about the facts of the case at hand, and the city's unconstitutional actions, and Sotomayor's support of same in the name of 'liberal correctness' and judicial activism to favor a certain racial group, not the history of Mr. Ricci.
7.11.2009 1:23pm
whit:

mr ricci is a face BEHIND the (imo ridiculous) decision that sotomayor made in the case. too many cases become so abstract that people forget there are actual people and lives behind the decision. seeing ricci, a dyslexic (iow, hardly the "privileged white guy" that is the meme amongst proponents of racial preferences), a hard working guy who was discriminated AGAINST because of his race, puts a face, a history, iow some meat behind the great injustice done towards him and his fellow firefighters.

it's one thing to read about "10,000 iraqis died during carpet bombing", another to see pictures. it's one thing to read about an abortion in the 7th month of pregnancy. it's another thing to actually see it done via "partial birth abortion".

and let's remember, politics is theatre. do we forget that nixon likely lost because he was SWEATY? we can get high and mighty and discuss legal concepts, but we have to remember the goal of politicians is to win
7.11.2009 1:23pm
martinned (mail) (www):

too many cases become so abstract that people forget there are actual people and lives behind the decision.

Empathy rules!
7.11.2009 1:25pm
PeteP (mail):
Ruffles - how exactly do you think referencing a recent SCOTUS decision implies anything about 'Ricci agreeing to let the GOP use him' ???

You think he had anything to say about it ? You think he had to give permission before politicians referenced the SCOTUS decision that happens to bear his name, as a result of his pursuing his legal rights though our system of justice ?
7.11.2009 1:25pm
BGates:
Oren, why does it require empathy to say (as the Supreme Court did) that ignoring a test designed by the city to be race-neutral violates Mr Ricci's rights? I'd think the SC's decision was the right one even if it benefitted a vile racist like ruuffles, someone for whom I have no empathy whatsoever.
7.11.2009 1:26pm
Interlocutor (mail):
Whit,

I disagree with that because I think in the end the role of a circuit judge in Sotomayor's position was to apply the law as it currently stood, but for the sake of argument let's assume that you're right that all of that information is relevant.

In other words, let's assume that facts that make Mr. Ricci seem more sympathetic as a plaintiff are relevant to the matter at hand. If that's true, then why aren't facts that make Mr. Ricci seem less sympathetic also relevant?
7.11.2009 1:28pm
Matt_T:
On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past.

Who knew the American Way was to be as slimy as physically possible? Good grief.
7.11.2009 1:28pm
tarheel:
His testimony is, of course, patently irrelevant. As, by the way, is his case as a whole, unless you believe that Sotomayor is unqualified because of her inability to predict the future or her unwillingness to ignore previous SCOTUS case law.

PeteP, you are aware that the 2nd Circuit holding was well in line with then-current SCOTUS precedent and was overturned 5-4, aren't you? "Grossly wrong"? As a matter of actual law or as a matter of your opinion?
7.11.2009 1:29pm
Interlocutor (mail):
PeteP,

I think the suggestion is that he's letting them use him because he agreed to testify at the hearings, not because they're "referencing" his case.
7.11.2009 1:29pm
lonetown (mail):
Yeah, who is this Ricci to claim to have any rights at all?
Especially over a wise latina woman who for all appearances is willing to ignore any oath of office to advance her demented racist agenda.
7.11.2009 1:29pm
TaxLawyer:

This is the GOP way of admitting that empathy is an important trait (certainly he's not going to testify about the finer points of Title VII) and that SS's decision did not show very much empathy for his point of view.


Wait, let me get this straight -- Every decision a judge makes is a display of empathy for only the prevailing party, and a lack of empathy for the loser? That dog won't hunt.

Also, a slight correction to my judge tally -- an additional ten judges reviewed the case in some sense, in order to vote on whether to take the case en banc. This is not, in theory or practice, a vote on the merits of the dispute itself, so I'd stand by my earlier tally. But you can safely count 4 additional judges on Sotomayor's side, who voted with the original panel not to rehear the case. It's not as clear you can count the other 6 on the opposite side, merits-wise, but even if you do, it's 12-11 for Sotomayor's side). Of course it matters which of those 23 judges vote which way. For now, therefore, Sotomayor's 12 lose. But it puts the case squarely within the class of cases on which reasonable jurists can differ.
7.11.2009 1:31pm
whit:

I disagree with that because I think in the end the role of a circuit judge in Sotomayor's position was to apply the law as it currently stood, but for the sake of argument let's assume that you're right that all of that information is relevant.

In other words, let's assume that facts that make Mr. Ricci seem more sympathetic as a plaintiff are relevant to the matter at hand. If that's true, then why aren't facts that make Mr. Ricci seem less sympathetic also relevant?


i don't think the facts that make mr ricci less sympathetic aren't relevant to the same political theater. *i* am saying i don't think the fact that he (god forbid) sued before for discrimination MAKES him less sympathetic. my point was that a working class hero suing for discriminatory practices is usually seen by the left as a HERO. it's the fact that he is a white guy and a victim of racial preferences and racial discrimination, that makes him unsympathetic to the left. that's why i brought up the paula jones analogy.

look at all the leftist buttons here. working class, union member with a disability suing big bad city (corporation would be better cause corporations are evil, but nobody's a perfect victim) for discrimination. he's a WHISTLEBLOWER. he's a victim of discrimination! oh wait. he's white. and he's testifying against a wise latina woman. nevermind, cheddar
7.11.2009 1:33pm
mga (mail):
When the late and unlamented Joe McCarthy deployed these kinds of smear tactics, liberals rightly denounced him. Obama promised to put an end to this kind of political tactic. He should denounce the People for the McCarthy/American Way.
7.11.2009 1:41pm
BGates:
Every decision a judge makes is a display of empathy for only the prevailing party, and a lack of empathy for the loser?

Not yet, but that's the goal. On the bright side, it will eliminate any backlog the courts face. Justice will work a lot faster once they get that pesky blindfold off.
7.11.2009 1:41pm
Interlocutor (mail):
Fair enough, whit, I guess I misunderstood what you were saying.
7.11.2009 1:41pm
martinned (mail) (www):

When the late and unlamented Joe McCarthy deployed these kinds of smear tactics, liberals rightly denounced him. Obama promised to put an end to this kind of political tactic. He should denounce the People for the McCarthy/American Way.

Don't be silly. Like Interlocutor said, both sides are in the wrong here.
7.11.2009 1:51pm
Cato The Elder (mail) (www):
Was the case EASY or HARD? Better get your stories straight right now, leftists.

If it was EASY to rule as Sotomayor did, so that her panel saw it fitting to issue but a per curiam opinion upholding the district court, then by all rights the American public should have a chance to understand what the liberal mainstream shockingly really believes; that is, at least my opinion, it upholds two completely separate yet facially equal standards to able to claim discrimination for the different races.

Perhaps I'm merely making a caricature of the "nuanced" leftist perspective.

If the case was HARD, so that Sotomayor's ruling -- along with the "8 other Article III judges" -- becomes understandable or at least reasonable, then why didn't her panel issue a written opinion with the facts in the first place? Either she is incompetent enough not to understand the numerous legal and Constitutional questions it aroused, or she is deliberately malicious in her intent.

"In a CNN/Opinion Research Corp. survey released Friday, 47 percent of people questioned would like to see the Senate vote in favor of Sotomayor's confirmation, with 40 percent opposed and 13 percent unsure."

Even Alito of "Sca-lito" had better numbers at his Senate confirmation hearings; Sotomayor has the worst since Harriet Miers, who even principled conservatives opposed, and her appointment was never really became pregnant. Of course, the Left and their MSM dopplegangers are firmly behind Sotomayor.
7.11.2009 1:51pm
troll_dc2 (mail):

When the late and unlamented Joe McCarthy deployed these kinds of smear tactics, liberals rightly denounced him. Obama promised to put an end to this kind of political tactic. He should denounce the People for the McCarthy/American Way.



McCarthy made up accusations and dragged people into hostile public-testimony situations. Frank Ricci volunteered to appear before Congress, perhaps in response to an invitation from the Republicans, and the people who do not like his lawsuit are pointing to defects in his resume that could be viewed as making his testimony less credible. Whether you like his cause or not, People for the American Way are doing nothing that no mildly competent defense lawyer would not do.
7.11.2009 1:53pm
Benjamin Davis (mail):
The point is obvious - he is chosen to be there because he brings up the issue of racial preferences for minorities and triggers that age old trigger in many whites about fear of the loss of white privilege. 400 years of this stuff.

Ricci is an empathetic working glass guy who asserted disparate treatment. The City was also worried about the Black and Hispanic firefighters asserting disparate impact.

Black and Hispanic firefighters were also empathetic working class guys who threatened asserting disparate impact. Maybe the Black and Hispanic firefighters' mistake was not filing the disparate impact suit and only threatening it. Then the majority of the Supreme Court might have taken the downside risks of their decision for integration more seriously.

Alito's concurrence is appalling as is Kennedy's majority opinion. Ginsburg points out so eloquently in her first sentence - "context matters."

And, in case anyone thinks the 60/40 written/oral split that was in the union collective bargaining agreement is immutable it is merely private ordering weighting (in nearby Bridgeport it was 30/70). Obviously to depart from the weighting in place would violate the Civil Rights Act.

If Ricci is relevant, then tt would be nice to have some of the Black firefighters testify too - no doubt very empathetic figures at least for people who are open minded.

That will show the dilemma the city faced and that the majority -in keeping the road to hoe on discrimination cases by minorities harder and harder and easier and easier for reverse discrimination arguing whites - pulling the "strong basis of evidence" standard out of its derriere to keep the means of redress of discrimination so terribly constricted in this country.

The Supreme Court's majority's vision on addressing discrimination is quite clear - equal opportunity wihout integration is Ok with them. Keep those places segregated! Yay!

Best,
Ben
7.11.2009 1:55pm
whit:

Ricci is an empathetic working glass guy who asserted disparate treatment.


let's not mince words. discriminating against somebody because of their race, which is what new haven admitted, is not "disparate treatment". it's racism.

new haven's putative REASON for racism was fear of being sued. so maybe they were "good faith" racists, but they racially discriminated against ricci et al. that much is clear.
7.11.2009 1:58pm
Public_Defender (mail):
The Republicans could make their intellectual case without Ricci personally. They wanted him for the emotional impact. At least the Republicans set a precedent for respectful treatment of a hostile witness--Anita Hill.

And for the record, given Sotomayor's well-earned endorsement from law enforcement at all levels, my clients would probably be better off if Sotomayor failed and Obama had to pick someone else.
7.11.2009 2:00pm
whit:

At least the Republicans set a precedent for respectful treatment of a hostile witness--Anita Hill


(cough...) PAULA JONES (cough...)
7.11.2009 2:02pm
tarheel:

he's a WHISTLEBLOWER. he's a victim of discrimination!

I agree, Whit. Hypocrisy abounds, which should never be news in SCOTUS hearings. When he's a Democrat asserting that he has been the victim of discrimination, he's a whining race-obsessed plaintiff playing the victim card. When he's a Republican, he's called a whistleblower (or Justice Thomas).
7.11.2009 2:02pm
The River Temoc (mail):
The talking point from People from the American Way is singularly unconvincing. Mr. Ricci sued his employer for discrimination against dyslexics. So what?
7.11.2009 2:06pm
Steve:
Too funny! How dare anyone challenge the Republican efforts to portray Ricci as the most sympathetic plaintiff ever, through the outrageous tactic of presenting contrary facts from the public record. HOW DARE THEY.

Y'all should make sure you stow away those copies of "The Real Anita Hill" before you start shedding those crocodile tears, folks.
7.11.2009 2:07pm
daveinboca (mail):
her panel saw it fitting to issue but a per curiam opinion upholding the district court, then by all rights the American public should have a chance to understand what the liberal mainstream shockingly really believes; that is, at least my opinion, it upholds two completely separate yet facially equal standards to able to claim discrimination for the different races.
"facially" means "racially," right? Good point and the two-faced [literally!] stance of the left surpasses logic and reason in its efforts to do social engineering by judicial fiat. Eight out of thirteen fed judges means that despite the SCOTUS being representative of the American people's presidential choices over the last three decades, the Dems have packed [and the Repubs permitted them to] the federal courts with young lifer ideologues while the Repubs get their choices blocked in Congress. The nanny state will be forged by judges making two-faced decisions, it seems.
7.11.2009 2:07pm
Jack (mail):
Just more evidence that the left-wing in this country is, by and large, composed generally of horrible, horrible people.

But what did Mr. Ricci expect? The left-wing will slime a Down Syndrome infant in their quest for political power, so of COURSE they will slime a white, male firefighter.
7.11.2009 2:08pm
Harry Eagar (mail):
They aren't going to make any friends among black people by publicizing that the white guy who passed the test is dyslexic.

(And, the question about this that baffles me: How do you design a written question that a person cannot answer because of his skin color?)
7.11.2009 2:08pm
tarheel:
Jack, how exactly is it "sliming" someone to point out that he has previously filed lawsuits in federal court asserting discrimination? Is that false? Did they mischaracterize his suit? They didn't have to hire a private detective to search PACER. Where is the slime?
7.11.2009 2:11pm
Pernod:
Stuart Taylor does his usual masterful job, discussing how the New Haven firefighters case was almost — but not quite —successfully buried by Judge Sotomayor and her co-panelists on the court of appeals, and how their actions may have violated a court rule.
7.11.2009 2:18pm
Quixotic (mail):
TaxLawyer,

1) Sotomayor lost 9 zip in the Supreme Court, as none of the Justices adopted the District Court's rationale, and those in dissent had to construct an entirely new argument to justify racial discrimination against Ricci and the other firefighters who aced the test.

2) Sotomayor and her 2 co-panalists conducted themselves dishonorably in Ricci, in violating the 2nd Circuit's Local Rule 32.1(a), which states that a decision may be deciced by summary disposition only if:


[I]n those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect).


As this Stuart Taylor article rehearses, Ricci was only unburied - and thus made a better candidate for Supreme Court review - only because Judge Cabranes of the 2nd Circuit found out about the case from reading the New Haven Register.

But besides her crappy non-reasoning and dishonorable conduct, Sotomayor did alright in the Ricci case.
7.11.2009 2:20pm
corneille1640 (mail):

Having agreed to let the Republicans use him in this way, he ought to be prepared for the Democrats to respond in kind.

I'm unclear about how much Mr. Ricci agreed to. Is he being subpoena'd and thus compelled to testify in the confirmation hearings, or is he voluntarily coming to testify.
7.11.2009 2:20pm
A. Zarkov (mail):
I read the Slate article and I'm puzzled. Does the author think Ricci's past lawsuits were somehow all frivolous? Does the author think that ADA should be done away with because people like Ricci will abuse it? So far all I see is someone who fights bureaucrats as well as fires. I wonder if she would write with the same tone about a black person who filed a series a civil rights lawsuits. Of course not. People like her seem to think white people don't count because their ancestors had some kind of "privilege."
7.11.2009 2:21pm
Cato The Elder (mail) (www):
Here are some choice quotes from such "empathetic" black firefighters of which Benjamin Davis speaks, from an article in the New Haven Independent titled, Firebirds, NAACP: Ricci Won’t Stop Us.

It’s going to set us back 45 years in” encouraging fire departments to hire more blacks, Hispanics and women, Lt. Gary Tinney, president of the New Haven Firebirds, a fraternal group for black firefighters said of the court ruling...

...On the other hand, he and NAACP President James Rawlings repeatedly said they saw silver linings in Monday’s ruling that will enable them to continue filing lawsuits and taking other actions in the name of advancing diversity. Which they plan to do.

“It doesn’t end here,” Tinney said.

“Folks can pop champagne bottles,” firefighter Douglas Wardlaw [] said Tuesday, referring to the victorious plaintiffs in the case. “They can smoke cigars all they want. But it’s not over. We’re still saving fighting the fight. We’re still saving lives. We’re still producing African-American, Latino and female heroes to look up to.”


Remember, this is the same Lieutenant Tinney who said, verbatim from Alito's concurrence:

One of Rev. Kimber’s “friends and allies,” Lieutenant
Gary Tinney, also exacerbated racial tensions before the
CSB. Id., at 129a. After some firefighters applauded in
support of certifying the test results, “Lt. Tinney ex-
claimed, ‘Listen to the Klansmen behind us.’” Id., at 225a.

By defending the indefensible, you continue to perpetuate naive racism. The case is pitting Black against White in a demagogic forum like the Senate where emoting arousing issues like the Senate shouldn't be properly discussed. Millions of whites, irrationally or not, are afraid of installing a veritable "racialist" on the Supreme Court, a powerful and unaccountable arbiter who might be inclined to rule against them, and you pretend not to understand why this might be concerning to them other than casting it in broad stereotypes of "white privilege" (a sickening term). This is not the type of atmosphere that I, as such a minority, enjoy when interacting with my fellow colleagues and friends of any race. I spit upon the entitled words and attitudes of fellow Blacks like Frank Tinney.
7.11.2009 2:22pm
corneille1640 (mail):
Whit:

I don't quite see Mr. Ricci as a "whistleblower," or at least not as I understand the term "whistleblower." He sued because he was adversely affected by a city's decision that was at least arguably racist and unfair. It's not as if he was privy to some secret government practice that he told the public about and then was fired.

Perhaps our disagreement is over the definition of what counts as "whistleblower."
7.11.2009 2:23pm
neurodoc:
Slightly OT, but not entirely since Ricci related...

What do others think about the op-ed in the NYT today ("Trial by Firefighters") by Lani Guinier and Susan Sturm, law professors at Harvard and Columbia respectively, and authors of "Who's Qualified?"? I expected something that might cause me more doubt about the outcome of the Ricci case, but which had exactly the opposite effect.

These two law professors ask, "What should a city do when its promotion test puts a majority of its population at a disadvantage...?" But who were all those, the majority of those in New Haven, at a disadvantage with this promotion test, and what exactly was that purported disadvantage? I don't see where they made themselves clear on this, except with for these dubious propositions:
In fact, many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.

Moreover, it was the firefighters union — which sided with the white firefighters in the Supreme Court — that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white.
Do professors Guinier and Sturm know what percentage of minority firefighters taking the promotion exam were unable to afford the study materials or borrow them from others versus the percentage of white firefights who were unable to afford or borrow the materials? How are multiple choice exams "measur(ing)...firefighters' retention of information from national firefighting textboos and study guides" inherently unfair to minority firefighters? Singularly unpersuasive, IMO.
http://www.nytimes.com/2009/07/11/opinion/
11guinier.html?ref=opinion
7.11.2009 2:30pm
whit:
i was referring to the ADA dyslexia case, corneille, not the instant one, in referring to him as a whistleblower. now, everybody knows i hate "semantical wanks" :) but... he filed a lawsuit because he believed the city was engaging in discriminatory practices. i guess the rub is that the practices he was exposing to ths sunlight were against HIM, so that may not make him a "whistleblower". whistleblower statutes protect those who make complaints about dept. practices from being retaliated against. would ricci qualify as a "whistleblower" under such statutes? i don't know, just askin'
7.11.2009 2:32pm
corneille1640 (mail):
neurodoc:

Interesting point.

Additionally, while I haven't read the Guinier/Strum article, it seems to me that if the test were at all discriminatory it would have had to do with the oral examination and not the multiple choice examination. In other words, one would think that weighing the multiple choice exam more heavily would actually militate against a discriminatory effect because the multiple choice exams are presumably objectively right or wrong and can be verified in a more "color blind" fashion than an oral exam where the examiners could (at least in theory) discriminate based on the exam taker's race.
7.11.2009 2:36pm
corneille1640 (mail):
Whit:

Thanks, I wasn't even thinking about the other suits Mr. Ricci had filed. (In fact, I didn't even follow the links in this post and hadn't heard of the lawsuits until now.)
7.11.2009 2:37pm
neurodoc:
Oh yeah...if the outcome of the exam had been different, that is some minorities finished at the top, then Guinier and Sturm would have accepted the results or dismissed them as "not identifying those people who are best suited for leadership positions"? (Note, Guinier and Sturm seem to be OK with weighting the results of multiple choice testing up to 30% of a candidate's overall score, but not the 60% weighting New Haven used.) If so, what percentage of those who made it would have to be minorities for their purposes? nearly 60%, corresponding to the percent of New Haven's population that is black and Latino. (But IIRC, one of the successful 15 was Latino, so I guess they would require >1/15 or 6% of the candidates.)
7.11.2009 2:38pm
Cato The Elder (mail) (www):
Sweet Jesu, I'm worked up. Above, the following sentence,

"The case is pitting Black against White in a demagogic forum like the Senate where emoting arousing issues like the Senate shouldn't be properly discussed"

should read as:

"The case is pitting Black against White in a demagogic forum like the Senate where *emotionally* arousing issues like affirmative action and discrimination shouldn't be properly discussed."
7.11.2009 2:39pm
Cornellian (mail):
I don't have any problem with the Republicans calling Ricci to testify against Sotomayor, nor do I have a problem with PFTAW pointing out Ricci's litigious past. But it seems like I'm the only commenter who's OK with both of those things. Everyone else seems to favor one but not the other.
7.11.2009 2:39pm
neurodoc:
corneille1640: ...it seems to me that if the test were at all discriminatory it would have had to do with the oral examination and not the multiple choice examination. In other words, one would think that weighing the multiple choice exam more heavily would actually militate against a discriminatory effect because the multiple choice exams are presumably objectively right or wrong and can be verified in a more "color blind" fashion than an oral exam where the examiners could (at least in theory) discriminate based on the exam taker's race.
Call me cynical, but I suspect that no matter the process that was employed, if the result did not in the end produce whatever Guinier and Sturm think the right ethnic/racial mix, they would see it as seriously flawed.
7.11.2009 2:42pm
Tony Tutins (mail):

in violating the 2nd Circuit's Local Rule 32.1(a), which states that a decision may be deciced by summary disposition only if:

[I]n those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect).


How was the summary order in Ricci a violation?

- the decision was unanimous
- the panel did not believe any jurisprudential purpose would have been served by giving their decision precedential effect.

Now, any time any employer believes it made a mistake in selecting a personnel screening mechanism, they must jump through hoops to justify it to the United States Supreme Court. Who among you would like to have your management decisions subject to that degree of scrutiny and second-guessing?
7.11.2009 2:44pm
Cato The Elder (mail) (www):

The number of non-Aryan Germans, within the meaning of the Law for the Restoration of the Professional Civil Service, of 7 April 1933 (Rgbl I, p 175), who may be admitted to schools, colleges and universities, must not exceed a number proportionate to the Aryan students in each school, college or university compared to the percentage of non-Aryans within the entire German population. This proportion is fixed uniformly for the whole Reich.

If, in accordance with Article 3, the number of pupils and students is to be reduced, there is likewise a proper proportion to be established between the total number of students and the number of non-Aryans. In doing so a somewhat higher proportion may be fixed.

Clauses 1 and 2 do not apply in the case of non-Aryans, whose fathers have fought at the front during the World War for Germany or her allies, or to children whose parents were married before the enactment of this law, if the father or mother or two of the grandparents are of Aryan origin. The number of these students is not to be included when calculating the quota of non-Aryans.
7.11.2009 2:44pm
drunkdriver:
Interlocutor wrote: There is nobody in this story who I think is doing the right thing...

and he said it best. This is sleazy behavior by the activist groups; but the real goat here is Lithwick, a lawyer by training, who took the invitation to do an anything-goes dirty-him-up piece from an emailed press prodder. She's lost all credibility as far as I'm concerned. My gosh, he's filed lawsuits before- clearly that proves he should not have won his most recent one.

I also agree that I can't imagine Ricci's testimony telling us anything we need to know about Sotomayor's fitness; here we will get to see the Republicans invoking "empathy" and I guess the Democrats denying its relevance.

If any of the plaintiffs is worthy of sympathy it would probably be Ben Vargas. Thank goodness he's not testifying, we might see a piece suggesting he had faked his own beating.
7.11.2009 2:47pm
martinned (mail) (www):

Everyone else seems to favor one but not the other.

Or disfavour both.
7.11.2009 2:47pm
Cato The Elder (mail) (www):
Anyone want to guess which ethno-religious group those non-Aryan Germans belonged to? Seems like a sizable number of them indeed have forgotten the lessons of the past.
7.11.2009 2:47pm
Tony Tutins (mail):

one would think that weighing the multiple choice exam more heavily would actually militate against a discriminatory effect because the multiple choice exams are presumably objectively right or wrong and can be verified in a more "color blind" fashion

The Guinier et al. essay argues that the test (how well does the candidate know the contents of a $500 syllabus) is of little relevance to the decision being made (who would make the best leader when fires are being put out).

The authors suggest using a test that closely simulates actual job situations, as other departments do.
7.11.2009 2:51pm
troll_dc2 (mail):
How many of the people who are blah-blah-blahing about the Ricci decision have read it? I have, and the thing that struck me the most is that the Title VII of the majority is different from the Title VII of the dissent.

The majority's Title VII has no context. It is as if these justices believe that the statute was aimed at an abstract problem and not at the employment history of this country. But the dissent's Title VII is missing two sections: Section 703(j) (which forbids employer-assisted racial balancing and which the majority mentions twice) and Section 703(l) (which forbids altering employment-related test scores on the basis of race and which the majority mentions four times). So the justices wound up talking past each other.

Perhaps the rule adopted by the majority is correct; I have yet to decide. But I simply do not understand why the majority did not remand to the district court. Maybe they did not trust the trial judge?
7.11.2009 2:51pm
neurodoc:
And what do people think of Dahlia Lithwick's snarky tone? I think it makes her appear partisan, and thus diminishes her.

Cornellian, you are not alone, I too think if the Republicans want to bring Ricci forward as a witness, then nothing improper about PTAW personalizing it to him. I expect if it were a Republican administration's nominee for the Court, that nominee would be asked by the Democrats how they would have voted on Ledbetter, the Dems would then have produced Ms. Ledbetter hereself as a witness, and the Republicans might have taken some shots at her (though perhaps more cautiously in fear of arousing women, something the Dems are not so afraid of with Ricci because there are minorities on the other side in his case).
7.11.2009 2:55pm
Rhymes With Right (mail) (www):
Yeah -- this uppity white man and a bunch of outside agitators dared to TWICE take on discrimination as usual in New Haven. Who does he think he is -- Jesse Jackson or Al Sharpton?
7.11.2009 2:59pm
neurodoc:
drunkdriver: If any of the plaintiffs is worthy of sympathy it would probably be Ben Vargas. Thank goodness he's not testifying, we might see a piece suggesting he had faked his own beating.
I think the Republicans have listed him, along with 2 of the VC, Ilya Somin and David Kopel.
7.11.2009 3:00pm
Rhymes With Right (mail) (www):
By the way, it is a good thing that little Linda Brown's father hadn't sued over discrimination before. After all, that would have invalidated the entire claim for relief stated in Brown v. Board of Education under the theory advanced by PFAW.

Unless, of course, their actual argument is that whites don't have any civil rights that are bound to be respected.
7.11.2009 3:05pm
Tony Tutins (mail):

this uppity white man and a bunch of outside agitators dared to TWICE take on discrimination as usual in New Haven

Is every handicapped individual entitled to take every job? Cannot a fire department rationally exclude dyslexics from its staff?
7.11.2009 3:06pm
Kingsley Browne (mail):

corneille1640:

In other words, one would think that weighing the multiple choice exam more heavily would actually militate against a discriminatory effect because the multiple choice exams are presumably objectively right or wrong and can be verified in a more "color blind" fashion than an oral exam where the examiners could (at least in theory) discriminate based on the exam taker's race.


This highlights a double-bind placed on employers by Title VII doctrine. Prior to Title VII, most employers, at least in the private sector, were pretty casual in their hiring practices, often leaving decisions to the subjective discretion of the decision-maker. Once Title VII prohibited discrimination, many employers sought to ensure compliance through the use of standardized tests, in order to curb decision-makers' discretion. Soon, starting with Griggs, employers came to be criticized if they use standardized tests (reducing applicants to "mere numbers") and were then subjected to what can be onerous validation requirements). If they seek to avoid that criticism by considering "the whole person," however, they are often challenged for allowing the possibility of subjective judgments "tainting" what "should be" an objective process.

In some contexts, however, the traditional objects of discrimination would like there to be an unreviewable discretion residing in the decision-maker, because they stand to benefit from it (as, no doubt, they would have in New Haven if more subjective components of the selection procedure had been given more weight). The black firefighters were "disadvantaged" in a way by the heavy weighting of the multiple-choice test, because it reduced the ability of the department to discriminate in their favor.

As for the attacks on Ricci, I agree that his appearance at the hearings is marginally relevant at best. He can testify about the facts leading to the lawsuit and about the cavalier way that his appeal was treated. But I would have thought that those opposed to his appearance would treat him as an irrelevancy, rather than making personal attacks on him, which seems to smack of desperation. (I don't see why Ricci's appearance is any less relevant to the matter at hand than Lily Ledbetter's appearance before Congress when the recent Title VII amendment was made (or at the Democratic convention, for that matter).

Even if it could be shown that Ricci's earlier lawsuit(s) were frivolous, however, I don't see how that would call into question his most recent lawsuit, which clearly was meritorious. It's that case, not Ricci's personal character, that is at issue. Whether he is an adulterer or has tax liens against him or mistreats his mother or aids and abets al Qaeda is simply not relevant.

As for the Anita Hill comparison, without taking a position on that matter as a whole or justifying some of the more outrageous things that were said about her, there is a fundamental difference. Hill made incendiary charges of personal wrongdoing against a Supreme Court nominee that were either factually true or factually false. She was telling the truth about them or she was not. Her personal character was therefore relevant to the question of whether Justice Thomas should be confirmed in a way that Ricci's character is not relevant to the question of whether Judge Sotomayor should be.
7.11.2009 3:08pm
drunkdriver:
Re neurodoc's post of 2:30pm,

I too was struck by that piece- and by the authors' suggestion that "Those without $500 for the study materials" might place some at a disadvantage-- my god, the test-takers all have the same job and are all being paid on the same scale. Now we have to feel sorry for the losers because they chose to spend their money on other things!

The authors were either not entirely serious; willing to say damn near anything to justify their desired outcome; or completely out of touch. It's of a piece, I think, with the Nicole Allan/Emily Bazelon essay that scorned the concept of promoting more knowledgeable people (approvingly quoting an anonymous non-promotee that "the test favored "fire buffs"—guys who read fire-suppression manuals on their downtime and paid test-manual writers to come to New Haven to speak"; I really have to wonder if no one could admit that taking such initiative is actually indicative of leadership ability).

These works come down somewhere along the lines of openly advocating picking leaders by race, and making tests so easy that most everyone passes, after which the winners are selected by lot. As pointed out elsewhere, these professors surely do not show such disdain for knowledge when selecting students and faculty for their elite institutions- but that is the limousine liberal mindset for you.
7.11.2009 3:08pm
neurodoc:
Tony Tutins: The Guinier et al. essay argues that the test (how well does the candidate know the contents of a $500 syllabus) is of little relevance to the decision being made (who would make the best leader when fires are being put out).

The authors suggest using a test that closely simulates actual job situations, as other departments do.
If Guinier and Sturm adduced any evidence to show that those selected were not the ones best-suited, or at least well-suited, for the promotions, I missed it.

And they asserted, without any proof other than the "disparate" outcome, that the promotion test the city used put "a majority of its population at a disadvantage..." What "disadvantage" other than the cost of the study materials, which were priced the same for everyone?
7.11.2009 3:09pm
corneille1640 (mail):

The Guinier et al. essay argues that the test (how well does the candidate know the contents of a $500 syllabus) is of little relevance to the decision being made (who would make the best leader when fires are being put out).

The authors suggest using a test that closely simulates actual job situations, as other departments do.

I guess I really should read the article (but I probably won't....shame on me). I can imagine that a multiple choice test may not be the best way to choose a candidate. Still, it is probably the most "color blind" way to do so. For what it's worth, I'm not defending either the Appeals court or the Supreme Court decision in Ricci, because I believe it's a hard case (enter shameless plug to my blog) and I'm not knowledgeable enough about the facts or the law. I am, however, temperamentally more disposed to favor Ricci et al. over New Haven.

As for what counts as a good test for actually being a good firefighter, I'll just have to throw up my arms and give up. I don't know the first thing about being a firefighter, except I imagine that it's not very easy.
7.11.2009 3:09pm
Oren:

Oren, why does it require empathy to say (as the Supreme Court did) that ignoring a test designed by the city to be race-neutral violates Mr Ricci's rights?

It doesn't, but that's a purely legal argument. Surely Mr Ricci isn't going to testify about the intricacies of Title VI, he's going to testify about it's impact on his life and his job.
7.11.2009 3:15pm
neurodoc:
Kingsely Browne: Whether he is an adulterer or has tax liens against him or mistreats his mother or aids and abets al Qaeda is simply not relevant.
The same, especially the first of those, applies with equal force to those who will be voting to confirm or not?
7.11.2009 3:15pm
Dr. Weevil (mail) (www):
Several things worth noting here:

1. drunkdriver: Vargas is testifying along with Ricci, and they both received what their local paper describes as "invitations", not subpoenas, so I suppose they could refuse to go.

2. Why would anyone turn down a once-in-a-lifetime opportunity to testify before Congress on a matter of interest to himself? (Other than fear, I mean.)

3. This was a test for promotion to lieutenant or captain, not for hiring in the first place. I can't believe that any fireman with enough experience in the ranks to apply for such a job would have to strain his finances to come up with $500 for necessary books. Many of us (and not just the dyslexics) face much larger hurdles. I have a PhD and 17 years teaching experience in colleges and private and charter high schools, but if I want to keep my new job as a public high-school teacher, I need to spend $3150 on tuition, several hundred on books, and hundreds of hours in the classroom or (mostly, I hope) on-line, all in the next year, taking a bunch of education courses to learn things I mostly already know, while teaching a full load of classes. (Not that I'm complaining: given the relative salaries of public and private schools, I'll come out ahead financially within a year or two -- assuming I don't get laid off due to budget cuts, that is.)

4. Could PAW be sued for false advertising and forced to change their name to People for the Unamerican Way?
7.11.2009 3:18pm
martinned (mail) (www):

Could PAW be sued for false advertising and forced to change their name to People for the Unamerican Way?

Surely any court worth its pay check would find a way to declare the definition of "the American Way" a non-judiciable (political) question?
7.11.2009 3:29pm
corneille1640 (mail) (www):

Why would anyone turn down a once-in-a-lifetime opportunity to testify before Congress on a matter of interest to himself? (Other than fear, I mean.)

As for fear: Is there a possibility that by testifying before Congress, one might inadvertently say something that might legally be construed as perjury? In other words, is it possible that someone who is honest might be tricked into saying something that is untrue? I, for one, confess that my memory can be faulty at times. Do laws and precedents about perjury take this into account?
7.11.2009 3:31pm
NickM (mail) (www):
For the people complaining that Mr. Ricci's testimony is irrelevant, please explain the relevance of retired baseball pitcher David Cone's testimony (he was called by the majority party).

Nick
7.11.2009 3:33pm
corneille1640 (mail) (www):

For the people complaining that Mr. Ricci's testimony is irrelevant, please explain the relevance of retired baseball pitcher David Cone's testimony (he was called by the majority party).

I didn't realize the pitcher was called to testify and I haven't the slightest clue how his testimony could be relevant. However, if Mr. Crone's testimony is, indeed, completely irrelevant, that fact by itself does not make Mr. Ricci's testimony relevant. For what it's worth, I think Mr. Ricci's testimony is relevant if he can shed light on Ms. Sotomayor's courtroom manner. (Here I confess my ignorance: do litigants usually get to see an appeals court judge, or is an appeals case just a manner of lawyers arguing in front of judges?)
7.11.2009 3:39pm
martinned (mail) (www):

For the people complaining that Mr. Ricci's testimony is irrelevant, please explain the relevance of retired baseball pitcher David Cone's testimony (he was called by the majority party).

I should think that is obvious. Since a SCOTUS judge is apparently like a baseball umpire, calling balls and strikes, a pitcher would have loads of useful things to say about Mrs. Sotomayor's suitability for the job...
7.11.2009 3:39pm
neurodoc:
corneille1640: As for fear: Is there a possibility that by testifying before Congress, one might inadvertently say something that might legally be construed as perjury? In other words, is it possible that someone who is honest might be tricked into saying something that is untrue? I, for one, confess that my memory can be faulty at times. Do laws and precedents about perjury take this into account?
Perjury can't be committed unwittingly. No perjury by mistake. Perjury is always a fully intended thing, and not everything untruthful said under oath is proescutable as perjury.
7.11.2009 3:57pm
loki13 (mail):
I think this is intersting for many reasons.

First, for all the griping that we've heard about judicial empathy, it is fascinating that we need the personal testimony of the litigant to get a true feel for how, uh, empthetic we should feel about his situation. Since this is an issue of judging, wouldn't the GOP want to hear some legal experts opine about whether the original panel (not just Sotomayor, as many have a habit of forgetting) was correct in her interpretation of then-current precedent? But that's not really the point, right? It's about empathy, except when it's not.

Second, I find Ricci's history... interesting... as well. The GOP is traditionally the party of personal responsibility, of tort reform, of "pull yourself up by your bootstraps" and yet here they are calling as a witness someone who haqs used litigation from day one (to get on to the fire department) to day two (to avoid being fired) to the present day (to get a promotion). It is possible that Ricci is just a stand-up guy fighting the powers that be instead of a schmuck who uses litigation to get what he wants whenever he is wronged (and yes, he is always wronged)... but I know that I wouldn't invite him into my house unless my homeowner's insurance/liability protection was paid up, and I have a feeling he'd find the one wet spot in my house to slip and fall.

All of this is immaterial. The only true thing about this latest manufactured controversy was found at the end of a prescient article:


There is little doubt that Sotomayor will be handily confirmed. Her judicial record is unremarkable and her life story extraordinary. And this is the paradox of the confirmation shuffle: We learn too much that is trivial and not enough that is important. The whole process is constructed around the fiction that nominees are hideous monsters in the eyes of half of the judiciary committee. But calling someone an unintelligent, racist bully under the bright lights of C-SPAN leaves scars the nominee may never forgive nor forget. This confirmation game is insufficiently serious to vet a lifetime appointment to the high court yet serious enough to create lifelong resentments and grudges. (Think of Clarence Thomas.)


There's serious questions to be asked. There's an interesting debate about the role of SCOTUS to be had. I've even heard there's some lawyers in Congress who might understand some of the issues. Pity we'll have another farce, politicized for both sides' base.
7.11.2009 4:03pm
A. Zarkov (mail):
It would not surprise me to see Ricci get more scrutiny from the press than candidate Obama.
7.11.2009 4:14pm
Cato The Elder (mail) (www):
The fact that you think this controversy is "manufactured", when public opinion polling showed that strict pluralities of all races opposed the Second's decision in Ricci, rather more supports the idea that you are a moral cretin, Loki.
7.11.2009 4:16pm
Dr. Weevil (mail) (www):
loki13:
"Since this is an issue of judging, wouldn't the GOP want to hear some legal experts opine . . ."

Two days ago Randy Barnett posted a complete list of witnesses testifying at the Sotomayor hearings. They include Dave Kopel, Ilya Somin, and quite a few other lawyers and law professors.
7.11.2009 4:17pm
martinned (mail) (www):

The fact that you think this controversy is "manufactured", when public opinion polling showed that strict pluralities of all races opposed the Second's decision in Ricci, rather more supports the idea that you are a moral cretin, Loki.

If there were a case that turned on upholding or ignoring Roe, you'd get similar numbers, but that doesn't mean that the Court of Appeals wouldn't be justified in dealing with the issue in a page or two. ("No, we're not overturning a clear SCOTUS precedent.")

Opinion polls like this are more relevant for the supreme court, who have a degree of freedom, than for the Court of Appeals, who don't.
7.11.2009 4:21pm
neurodoc:
loki13: It's about empathy, except when it's not.
When making your case, do you simply ignore your opponent's, or do you sometimes go the en arguendo route, pointing out the logical inconsistencies, improbable conclusions, or undesirable results that would follow? If Sotomayor or her supporters are thumping the "empathy" drum, then what is wrong with the other side challenging the "empathy" thing, whether it is if she is always empathetic or capacity for empathy should be a consideration?
7.11.2009 4:26pm
loki13 (mail):
Cato,

I realize that this is a favorite (the favorite) of your hobby horses, but I would point out that the manufactured controversy I was wrote of was Ricci's litigation past/looking into his past, not the Ricci case itself.

FWIW, I think the broad contours of the Ricci case are largely manufactured, in the sense that partisans of both sides with axes to grudge selectively sell their own narrative in order to change "the people's" perceptions.

So:
1. Ricci was a talented firefighter who aced the promotion exam after overcoming his disability and working hard. The racist city denied him his promotion and the even-more racist Judge Sotomomayor personally spanked him from the bench, laughing at his whiteness, until SCOTUS unanimously said Sotomayor was all racist and ignored the law and gave the the deserving Ricci his job.

2. Ricci is a serial plaintiff, getting his job and keeping his job by filing lawsuits. After he was denied a promotion, he did what he does best, filing yet another lawsuit against a city that was trying hard to integrate a racially imbalanced firefighting force and had previously lost several lawsuits against black firefighters for its discrimination. A district court judge denied his suit, and three other judges deny his appeal, following then-current precedent. A split SCOTUS voted 5-4 to change the understanding of the law, allowing the overly litigious Ricci yet another victory in the courtroom (where he is 2-1), a place he spends far more time in than New Haven, clearly.

Which version is correct? Neither. Something in between. But it's FUN to be really extreme, isn't it? Doesn't matter that all the nuance and truth gets lost.
7.11.2009 4:31pm
Bpbatista (mail):
What does Ricci's litigious past have to do with anything? He could be a convicted felon and mean to small animals. He was still illegally discriminated against on the basis of his race -- a result that Sotomayor affirmed and then tried to effectively cover up from further review.

Sotomayor is racist and sexist. The wise Latina's carefully considered statements and rulings back that up.
7.11.2009 4:31pm
Pseuss (mail):
So Lithwick is carrying water for the O admin again. What a surprise.

My guess is that journalists are tired of being prevented from doing investigative reporting now that the administration cannot be investigated. Destroying ordinary people who stand in Obama's way is their only outlet.
7.11.2009 4:33pm
Cato The Elder (mail) (www):
When making your case, do you simply ignore your opponent's, or do you sometimes go the en arguendo route, pointing out the logical inconsistencies, improbable conclusions, or undesirable results that would follow?

There may be ultimately no point in the whole business, neurodoc. The author of the argument you refer to evidently chose his Volokh handle quite carefully. You see, in the Norse mythology, Loki is often referred to as "The Trickster" and a "shape-shifter"...
7.11.2009 4:36pm
troll_dc2 (mail):

If Sotomayor or her supporters are thumping the "empathy" drum, then what is wrong with the other side challenging the "empathy" thing, whether it is if she is always empathetic or capacity for empathy should be a consideration?



I am confused. If you take the position that Sotomayor's remarks about empathy are relevant because they show that she is not qualified to be a Supreme Court justice, why would you support the use of a witness whose usefulness cannot be other than to create empathy for the white plaintiffs and hostility toward Sotomayor? So you play the empathy card to oppose empathy? Or is there good empathy and bad empathy?
7.11.2009 4:45pm
Cato The Elder (mail) (www):
If you take the position that Sotomayor's remarks about empathy are relevant because they show that she is not qualified to be a Supreme Court justice

No one has ever come CLOSE to saying such a thing, what a ridiculous straw-man. There is no implication arrow there, at least none without readily identifiable caveats. Empathy towards whom? - all or some? Empathy with regards to what? - creed, race, or class? Empathy elevated above the law as written? - or utilized with "context", a word I find nowhere in the language of Title VII?
7.11.2009 4:53pm
Leo Marvin (mail):
Cornellian:

I don't have any problem with the Republicans calling Ricci to testify against Sotomayor, nor do I have a problem with PFTAW pointing out Ricci's litigious past. But it seems like I'm the only commenter who's OK with both of those things. Everyone else seems to favor one but not the other.

The operative word is "commenter."
7.11.2009 4:55pm
Just Dropping By (mail):
Is Sarcastro posting under a couple dozen different names these days? That's the only way I can understand the discussion thread above.
7.11.2009 5:10pm
troll_dc2 (mail):

Is Sarcastro posting under a couple dozen different names these days? That's the only way I can understand the discussion thread above.



I have seen several references recently to Sarcastro. I don't live in the blog world. Who is he?
7.11.2009 5:27pm
troll_dc2 (mail):

If you take the position that Sotomayor's remarks about empathy are relevant because they show that she is not qualified to be a Supreme Court justice

------
No one has ever come CLOSE to saying such a thing, what a ridiculous straw-man. There is no implication arrow there, at least none without readily identifiable caveats. Empathy towards whom? - all or some? Empathy with regards to what? - creed, race, or class? Empathy elevated above the law as written? - or utilized with "context", a word I find nowhere in the language of Title VII?



So what's the problem then? Why is she being criticized?
7.11.2009 5:28pm
Sarcastro (www):
Actually, the entire internet is just me and my sock-puppets. I have a lot of time on my hands.
7.11.2009 5:30pm
AJK:


So what's the problem then? Why is she being criticized?



If judgments are going to be based on empathy, they should least be empathetic towards the right people.
7.11.2009 5:34pm
whit:

I don't have any problem with the Republicans calling Ricci to testify against Sotomayor, nor do I have a problem with PFTAW pointing out Ricci's litigious past. But it seems like I'm the only commenter who's OK with both of those things. Everyone else seems to favor one but not the other


really? everybody? i don't know how you draw that conclusion, unless you are inferring wildly. fwiw, i am not against PFTAW bringing up Ricci's "litigious past". i am just saying his "litigious past" is in no way a NEGATIVE. since when is making a discrimination complaint a NEGATIVE thing? if there is evidence the complaint was frivolous, or he lied , it would be. otherwise, saying it's a negative is ClASSIC blaming the victim. and it really is the height of irony for the liberals who are trying to slam ricci to claim that making a civil rights/ADA complaint is a NEGATIVE thing. i mean, seriously.
7.11.2009 5:49pm
loki13 (mail):
The problem of empathy is actually very easy to understand.

There are a mulitude of ways to view empathy.

1. The public as a whole has a favorable view of empathy when it comes to judges. While they want judges applying the law, they also want judges to be attentive of personal circumstances. Since what little experience most people have is with trial judges (think traffic court, family law etc.) this makes sense; you want a judge who is "fair".

2. Then there is a view adovcated by Obama. I think he is correct when he articulated that there is a certain percentage of cases that are "hard" that go to the appellate level; where the law is unclear or, perhaps, contradictory (the text of a statute is uncertain, you have a conflict between equally compelling doctrines, e.g. the right of free speech and an impartial jury aka closing the courtroom). In these cases, the judge needs to draw on their wisdom/empathy/something to make a decision. What this is has been unclear, as Obama has been, uh, somewhat vague in defining it.

3. Finally, there is the position of some conservatives, who believe that "empathy" is a codeword for "making decisions that are favorable to minorities/poor people/others I don't like while disregarding the law". For them, it has become a term of art, the same way that "super precedent" or "super duper precedent" means "don't overturn Roe v. Wade".

So... empathy is good for judges. "Empathy" is bad for judges. I think. It makes my head hurt.
7.11.2009 5:51pm
BT:
From Lani Guiner's HLS home page:

"In 1998, Lani Guinier became the first woman of color appointed to a tenured professorship at the Harvard Law School and is now the Bennett Boskey Professor of Law."

My understanding is that Ms. Guinier is black, which would put her in the same racial category as a number of the the New Haven fire fighters that did not do well on the advancement test. She now advocates that multiple choice tests like the one given by New Haven are not a good way to judge leadership talent or candidates for advancement. Chances are Ms Guiner, despite being black, had to take numerous multiple choice, oral and written tests during her undergrad and graduate career on her way to her current position at Harvard. She apparently did quite well on them, despite being black.

In her view, did most of the tests she had to take put her at a disadvantage to her fellow students who were not black? How did she overcome such a disadvantage? Were there special considerations given due to her race? Or did she do it the old fashioned way by studying the subject at hand, reading the materials provided and suggested by the professors, putting in the time and work it takes to master a particular subject and trying to identify her areas of weakness and improve them? (A similar strategy employed by the fire fighters who did well on the test). My guess is that it was the latter strategy of hard work and perseverance that Guinier did to get where she is today.

I could be wrong about Guinier’s road to success. But if I am right, it just seems sad and duplicitous that she would now advocate for an entirely different and ineffective way to test for competency.
7.11.2009 6:14pm
Tony Tutins (mail):

Or did she do it the old fashioned way by studying the subject at hand, reading the materials provided and suggested by the professors, putting in the time and work it takes to master a particular subject and trying to identify her areas of weakness and improve them? (A similar strategy employed by the fire fighters who did well on the test).

So the same traits that make a successful Harvard professor make a successful fire department captain?

Why not just hire Lani Guinier to run your fire department?

But I will switch sides and support the use of standardized tests to qualify everyone for every position. Because from her record as VP candidate, there's no way Sarah Palin can ever swot up enough stuff to pass the Presidential Candidate Qualifying Test (PCQT). In fact, applied retrospectively, I don't see how W. or Reagan would qualify, as neither was known for their raw intellectual power.

GHW Bush would have qualified, as would Rhodes Scholar Bill Clinton.
7.11.2009 6:38pm
neurodoc:
Sarcastro: Actually, the entire internet is just me and my sock-puppets. I have a lot of time on my hands.
You don't put that in brackets, so we aren't supposed to take that it face value, rather we are supposed to understand exactly the opposite, right? The problem is the bracket/non-bracket convention confuses me and I'm not sure what the "opposite" is here.

Not the case that the entire internet is just you and your sock-puppets? I, neurodoc, for one, emphatically deny that I am your sock puppet, and hence am able to say it cannot be the entire internet. And I suspect there are others here who are not Sarcastro's sock puppets either, but I don't know who they might be. Will the non-sock puppets please raise their hands, so we may know who you are. Those not raising their hands at this time, will remain under a cloud of suspicion.
7.11.2009 7:04pm
FC:
Speak power to truth!
7.11.2009 7:05pm
martinned (mail) (www):

I, neurodoc, for one, emphatically deny that I am your sock puppet, and hence am able to say it cannot be the entire internet.

Then again, you'd also say that if you were Sarcastro's sock puppet.
7.11.2009 7:08pm
Leo Marvin (mail):
I am Sarcastro.
7.11.2009 7:11pm
neurodoc:
martinned: Then again, you'd also say that if you were Sarcastro's sock puppet.
Are you calling me a liar? I told you I am not his sock puppet and I'm not! But now, I'm not so sure about you. For all we know, you could be Sarcastro's sock puppet and trying to confuse us so as to throw us off the trail, and let Sotomayor slip in while we are distracted by this silliness.
7.11.2009 7:17pm
martinned (mail) (www):

I told you I am not his sock puppet and I'm not!

Maybe you're Sarcastro's sock puppet without even knowing it...
7.11.2009 7:20pm
neurodoc:
Leo Marvin: I am Sarcastro.
You don't fool me. I can smell imposters.

Now, let's return to the serious business of vetting Sotomayor. The Senate Judiciary Committee is waiting for our us to give them an answer.
7.11.2009 7:31pm
Leo Marvin (mail):

The Senate Judiciary Committee is waiting....

Senator Sarcastro in particular
7.11.2009 7:37pm
loki13 (mail):
Since I too often don't bother posting anything constructive, here's what I would do if I were of the Guardians of the Guardians that ran the Senate Judiciary Committee as far as Sotomayor and the Ricci case went:

1. First, I would call witnesses (2) who would give testimony about what they believed the state of the law wrt. Title VII and disparate impact was as far as Supreme Court precedent went. Then I would have these same two witnesses give testimony about how the circuits were interpreting that precedent, with particular emphasis as to how the 2d Cir. precedent went, and how If at all) it differed from other circuits. The two witnesses would be well-versed in this area (law professors who have studied the area, perhaps) from different ideological backgrounds (a "conservative" and a "liberal") without a partisan axe to grind (sorry, Ed Whelan!).

2. Then each of these witnesses would be asked about stare decisis (vertical and horizontal) and the proper role of an appellate judge. In addition, they would be asked what the correct procedure for a three-judge panel is wrt. current SCOTUS and circuit precedent.

3. After this, each witness would be asked if, in their opinion, the panel followed precedent, and if not, to explain why it didn't.

4. In addition, each witness would be called upon to give general background (let's call it context) about Title VII and why the rules were the were they were and why SCOTUS changed them by a 5-4 vote. They would be asked to opine about whether this was a good or bad thing. (We could have other witnesses here, from civil rights leaders, to conservatives against affirmative action, to the Chamber of Commerce).

5. When Sotomayor is questioned, if one of the witnesses opined her ruling was against precedent, she should be asked about that. She should also be asked about why the panel chose to handle the case in the way it did (summ judg., then a brief written order). She could be asked about her views on following precedent in general, and how she feels that might change if she is elevated to a position where she is not required to follow it, and what factors she might consider when deviating from precedent.

In the end, this conversation might prove more enlightening, and give Congress something to think about if they ever get around to changing Title VII, than the vacuousness we see displayed here and which will soon by displayed in Congress.
7.11.2009 7:41pm
Tony Tutins (mail):

I, neurodoc, for one, emphatically deny that I am your sock puppet, and hence am able to say it cannot be the entire internet

What fools we've been! Sarcastro is neurodoc's sockpuppet, not the other way around! How diabolical of neurodoc to try to distract us from the obvious.
7.11.2009 7:49pm
Desiderius:
Sarcastro is my sockpuppet.

And Cato, Loki's about as tricky as Norman Rockwell these days. Would have been interesting to know him back when the name applied.

martinned,

I'm with you. Ricci as witness is grandstanding and the People for Norman Lear's Way are up to their usual negative-sum shenanigans. Dishonor all around.
7.11.2009 8:09pm
loki13 (mail):
Desi,

It was easier to be tricky when the level of discourse here was higher. Then, you could make the jabs and the feints and the meta-jokes. Now, I think the ultimate trickery is sticking to the facts and being reasonable. No one would suspect it. After all, when the general tenor of comments is:


Yeah, who is this Ricci to claim to have any rights at all?
Especially over a wise latina woman who for all appearances is willing to ignore any oath of office to advance her demented racist agenda.


Who needs either Sarcastro or a trickster god? If you want, I suggest looking back to early 2007... back when I could poke fun of people who knew what they were talking about, instead of being forced to be all reasonable to counteract the buffoonery.
7.11.2009 8:24pm
Brian G (mail) (www):
Ricci is an incompetent firefighter who couldn't get a promotion on the merits so he had to sue everyone in sight. He just can't accept the fact that he is not qualified for the position he sought. New Haven had every right to keep incompetent firefighters from promotions for the public safety. The problem with guys like Ricci is that they are so used to getting their way because they are white as soon as they see one minority get ahead of them they sue and act like there was some discrimination against them. Ricci is the only racist here, not Sotomayor, who is eminently qualified to sit on the Supreme Court. Not even John Roberts or Scalia had even close to her credentials when they were nominated. She is a Hispanic women, with experience at all levels of the judiciary. Scalia and Roberts came from white-bread K Street law firms who gave a lot of money to the GOP. She should be confirmed 100-0, but she won't because Republicans only vote on politics. Plus, they would never vote for a Hispanic unless it was some token they could control, like Miguel Estrada.
7.11.2009 8:58pm
whit:
i am assuming brian g's post is sarcasm.
7.11.2009 9:15pm
loki13 (mail):
Ricci is the best firefighter ever who just kept getting discriminated against- for being dyslexic, for being a whistleblower, and for being white. Luckily, he was able to use our awesome civil rights laws to rectify these horrible injustices. He just kept using the court system to get the results that mattered; because using laws that were enacted to protect the disadvantaged is important, and no one is more of a victim than Ricci. The problem with the blacks and the handicapped and the liberals is that they are so used to getting their way because they are victims as soon as they see one real victim get ahead of them they whine and complain about how the laws are being misused. Sotomayor is the only racist here, not Ricci, who has used every legal tool at his disposal to get and keep his job, and even get promoted! And that's the American way! Sotomayor doesn't even have close to Alito or Clarence Thomas's credentials when they were nominated. She is a Hispanic women who just "empathy" and "wisdom" when judging, not real law stuff. She should be shot down 100-0, but won't because the Dems only vote for heart-warming stories. The GOP would never elevate some token minority, and believe in a strong application of Title VII, and letting victims like Ricci sue there way to success.

Sarcasm is easy, but not very funny.
7.11.2009 9:30pm
RowerinVa (mail):
Once, in America, the press comforted the afflicted and afflicted the comfortable.

Now the process is reversed. Not even the archetype of a blue collar American -- a firefighter -- gets decent treatment. Wronged by his local government and a powerful federal judge (in fact, several federal judges), he speaks out, and earns only the vicious attacks of the very press that he expected to want to tell his story.

This is only the latest in a series of dark days for the Fourth Estate.
7.11.2009 9:47pm
A. Zarkov (mail):
Scroll down to the comments in the McClatchy article. In particular the ones by some Hispanic people.

"As a USA Chicano, 65 years old and a verteran
I was with La Raza, but after 1968, it was taken over by others with the purpose to use La Raza for illegal alien(LAS GARAPATAS) agendas

They, La Raza, have betrayed LOS CHICANOS"

...

"As a Latino and someone Fluent in Spanish. I want to make it very clear...At it's Leadership core, La Raza (The Race) is indeed racist. As a young student in the 1980's I was recruited by La Raza and out of curiosity attended their Rallies. When speaking in English there is a tendency to soft-peddle the message. But when the message is in Spanish, it's more strident and utterly racist. Their founding manifesto (El Plan de Aztlan) is itself a racist revolutionary violence inciting document. Not every member of la Raza is of this nature, but it's leadership cadre is fully aware of the founding principals of La Raza and it "Reconquista" message."
La Raza could turn out to be quite a problem for Sotomayor. If the Republicans can get some of their really inflammatory writings and speeches translated, Sotomayor is going to have to explain how she missed all that. After all she does speak Spanish.
7.11.2009 9:59pm
Eli Rabett (www):
We know that Ricci is (severely) dyslexic how?
7.11.2009 10:50pm
Desiderius:
Loki13,

Well, libertarian academics are a minority within a minority. Once the academic majority noticed the popularity the VC had rightly achieved and so kindly began their regular visits with their welcome wagon of TPM talking points, the game was up. It was only a matter of time before the big majority showed up to counter the nomenklatura.

But the new game isn't so bad for all that, given the standards of political discourse in what we now consider to be Golden Ages, distinguished as they were by polemic and exaggeration and conspiracy theories of every stripe. Just makes the best stuff stand out all the more, and anyway the adversarial method of truth discovery is a natural for lawyers.
7.11.2009 10:56pm
Desiderius:
Eli,

Right-wing propaganda. Don't believe a word.
7.11.2009 10:56pm
Desiderius:
What I can't figure out is that if the city of New Haven has a bunch of white guys fanatically devoted to being some kind of Jedi Firefighting Knights, why not just let them handle the firefighting and look for something else useful to do? It's not like New Haven is some kind of paradise on earth in need of nothing but protection from the ever present scourge of fire.

If there's such an oversupply of people wanting to be firefighters, why doesn't the city clear the market by lowering the price they offer for firefighting services? Maybe they could use the money saved to contract for some much-needed housing refurbishment services. By all accounts, there is just now a plentiful supply of public-minded African-Americans chomping at the bit to do well by doing good.

Oh, I forgot, the people don't run New Haven, the unions do, and they set the prices. Nice oligopoly you got there, shame if something were to happen to it.
7.11.2009 11:05pm
Psalm91 (mail):
In light of comments on various recent posts, I think that potential VC commenters should have to take and pass a multiple choice test.
7.12.2009 12:00am
Desiderius:
Loki,

I think Brian G is attempting (and has past attempted) to be an agent provocateur. Luckily, he makes Maxwell Smart look, well, smart by comparison.
7.12.2009 12:12am
neurodoc:
Psalm91: In light of comments on various recent posts, I think that potential VC commenters should have to take and pass a multiple choice test.
Are you kidding? I am quite condifent that most VC commenters have taken and passed a great many multiple choice tests in the course of their lifetimes. I couldn't begin to count the number that I took (and passed) in the course of >24 years of school, 6 of residency, medical licensure and admission to the bar, board certifications, etc.

I can easily understand how one might maintain that the multiple choice exam that New Haven employed might not turn out in the end to be a great predictor of performance as a fire department lieutenant or capitan. I am hard pressed to understand, however, how it can be maintain that the minority firefighters were at a disadvantage, as Guiner and Sturm claim, when taking the multiple choice exam. Has anyone pointed to anything in the exam that a white firefighter would be more likely to know than a minority firefighter. Are white firefights more likely to get the answer to "whether it is best to approach a particular emergency from uptown or downtown even when the city isn't oriented that way"? Maybe the question is effectively an irrelevant one as G&S maintain, but is it a "cultural" thing that disadvantages minorities?
7.12.2009 12:58am
Californio (mail):
How dare those firefighters speak! What is our world coming to when AMATEURS deign to even make eye-contact with their betters. Some day they can all be shot for their counter-revolutionary ways!

What? Someone at the door says that my comments do not adequately support the regime in power? Why... that is not true, uh...Dissent is Patriotic! I.. [bang][bang][bang].

{ Ah, a shame - but he did not realize that the whole "dissent" thing ended with the new election..ONWARD comarades, to a bright new future! We collectively salute and uplight our fellow supporters - our comrade journalists who will out the truth at all costs! Now I shall sign off before there is a paradigm shift within the regime again and I am relegated to the memory hole. ONWARD!}
7.12.2009 1:49am
BGates:
We know that Ricci is (severely) dyslexic how?

How can we be sure the guys who failed the test and sued are black? Can any of them document their ancestry all the way to Africa? For all we know, they're claiming their forefathers were born in Africa while suppressing records proving they are all from Hawaii.
7.12.2009 2:10am
Ohio Scrivener:
I often judge how effective a witnesses is by how the other side reacts to his or her testimony. Some on the left are making Ricci look pretty important right now. It seems to me Sotomayor would be better off if her supporters simply declared Ricci's testimony irrelevant and ignored him. Instead, some of her supporters seem bent on drawing more attention to him.
7.12.2009 2:49am
Tony Tutins (mail):

La Raza could turn out to be quite a problem for Sotomayor.

Luckily, "La Raza" refers to at least three organizations, only one of which has a separatist point of view:

1. The National Council of La Raza, which is an association of Hispanics and Hispanic organizations. It is not a separatist movement any more than B'nai Brith is.

2. La Raza Unida -- apparently the source of advocacy for the "reconquista" of "Aztlan." Sotomayor never belonged to this. Why she, daughter of Puerto Ricans, would give two flicks about giving the Southwest back to Mexico, remains a mystery.

3. Various associations of Hispanic lawyers in Northern California with "La Raza" in their name. These are also affiliated with NCLR.
7.12.2009 3:00am
martinned (mail) (www):
7.12.2009 8:45am
MnZ (mail):

I often judge how effective a witnesses is by how the other side reacts to his or her testimony. Some on the left are making Ricci look pretty important right now. It seems to me Sotomayor would be better off if her supporters simply declared Ricci's testimony irrelevant and ignored him. Instead, some of her supporters seem bent on drawing more attention to him.


The left has some undeniable totalitarian impulses. History shows that totalitarians overreact to even non-existent threats. However, there is a very good reason for their overreaction - they want to send a message to actual threats to their power.

By attacking Ricci, PFAW hope to send a message to anyone else who might "deviate" from the appropriate pattern of conduct.
7.12.2009 9:04am
yankev (mail):
Maybe they can come up with the kind of devastating impeachment that they used against Joe the Plumber -- maybe his name is not actually FRANK Ricci, but SAMUEL Frank Ricci!
7.12.2009 12:08pm
newton:
If any two people involved in the Ricci case should testify, these are the two I would definitely love to see:

1. Lt. Ben Vargas, who was one of the firefighters involved in the lawsuit
2. Judge Jose Cabranes, who penned the scolding dissent on the circuit's decision, and on Sotomayor's conduct in particular.

Anyone guess what those two men have in common with Sotomayor? Start researching.
7.12.2009 12:09pm
Tony Tutins (mail):

By attacking Ricci, PFAW hope to send a message to anyone else who might "deviate" from the appropriate pattern of conduct.

Republicans selected Ricci because the great white public would hopefully sympathize with his tragic plight at the hands of the white-dominated judiciary. (Three of the first four judges who ruled on his case were white.)

But would Ricci be as sympathetic if we knew all about him? Let's see Ricci, warts and all.
7.12.2009 12:11pm
Mr L (mail):
Desiderius: Once the academic majority noticed the popularity the VC had rightly achieved and so kindly began their regular visits with their welcome wagon of TPM talking points, the game was up.

Why just link the main site? You know as well as I that one slimebucket sewage fountain releasing a hit-piece means that all the other 'independent, non-partisan' slimebucket talking-point sewage fountains will have their own suspiciously similar hit-pieces ready. It's almost as if they coordinate this stuff.

In this case, the TPM hit-piece is here. You stay classy, TPM.
7.12.2009 1:10pm
Joe Y (mail):
The most distressing thing about this post is the speed and quantity with which Sotomayer proponents, democrats, and/or just plain paid hacks hit the beginning of the comment thread, expertly diverting from a discussion of the original post to silly and pointless screaming.

The question is whether Ricci is being slimed by newspapers working in sympathy with the Democratic party. The answer is yes, of course, just as Joe the Plumber was, and Sarah Palin was. This is disgusting, and would be equally so from the Republicans or any other party or person.

Serious people who want to have a serious discussion, regardless of personal opinion, must not respond to those who wish to hijack a thread. Once you do, the hijackers have accomplished there purpose. Just step over their blathering as you do any other turd on the sidewalk, and discuss the post intelligently.
7.12.2009 2:26pm
loki13 (mail):
Allow me to re-order the previous post:

1. Serious people who want to have a serious discussion, regardless of personal opinion, must not respond to those who wish to hijack a thread.

2. The question is whether Ricci is being slimed by newspapers working in sympathy with the Democratic party. The answer is yes, of course, just as Joe the Plumber was, and Sarah Palin was.

Res ipsa.
7.12.2009 2:32pm
loki13 (mail):
Just to put this in perspective:

Imagine that a black firefighter had his discrimination claim dismissed by multiple courts. Then imagine that SCOTUS, in a 5-4 ruling, had changed the law to allow his promotion. The democrats call him to testify about how unfair the laws are.

Meanwhile, it is found out that this firefighter originally got his job through a lawsuit claiming he was discriminated against because of his ADD (and the city buckled rather than fight the Americans with Disabilities Act) and that when he was fired for poor job performance, he brought another suit claiming he was being discriminated against because he was a whistleblower, despite no previous evidence that he was. Do you think this might be pointed out?

I am personally against the politics of personal destruction. I don't think Ricci has anything to add to the conversation, and I wish he wasn't testifying. Unfortunately, the GOP, in calling him, either has to acknowledge that they have chosen someone who is an expert at playing the victim card and using litigation to acheive his ends (goodness forbid you ever rearend his car at 3 mph)* or, conversely, is the poster child for all the wonderful employment laws that many in the GOP like to rage against.

*Again, I don't know that to be the case. It is entirely possible that Ricci is both a serial victim and a standup guy who is defending his rights. But I find it remarkable; I'm a lawyer, and I've been *personally* involved in three less suits --that I know of-- than he has.
7.12.2009 2:43pm
Derrick (mail):
Maybe they can come up with the kind of devastating impeachment that they used against Joe the Plumber -- maybe his name is not actually FRANK Ricci, but SAMUEL Frank Ricci!


Maybe you've forgotten that he wasn't actually a plumber, owed years of back taxes and his whole Horatio Alger story of buying the business was as flimsy as paper. Joe The Plumber only has credibility at Tea Parties and Palin rallies, and rightfully so.

The question is whether Ricci is being slimed by newspapers working in sympathy with the Democratic party. The answer is yes, of course, just as Joe the Plumber was, and Sarah Palin was.


What is your definition of slimed? It seems that you use it only to "slime" your opponents instead of as proper description of activity. Ricci is being put front and center at the hearing of US Supreme Court Justice, who could impact this country greatly for the next 3 decades. If he wants to play a large part in such an important endeavor, I think its foolish not to know who he is. But obviously, looking into someone's background is only ok if you are a Republican.
7.12.2009 2:47pm
Cornellian (mail):
and it really is the height of irony for the liberals who are trying to slam ricci to claim that making a civil rights/ADA complaint is a NEGATIVE thing.

Ditto re conservatives claiming that filing a battery of civil rights complaints is now a good thing.
7.12.2009 2:56pm
Notmyleg (mail):
Here's my problem with whole Ricci situation. In the most recent case, each side makes a different assumption about the test. Conservatives assume that the test accurately selected the best firefighters, and the minorities were less qualified people looking for a handout because they were black. Liberals assume that the test was flawed; it was not determining the most qualified candidates, rather, it was favoring whites simply because they were white, and that an equally able black candidate would likely score lower than a white candidate. This therefore was not an attempt to promote less qualified individuals, but to ensure that equally qualified minorities were not discriminated against.

I happen to fall into the latter category, I strongly suspect that the test was favoring qualities not relevant to firefighting ability. I also believe, however, that people holding the opposite belief are equally as sincere, they believe this is an attempt to unjustly promote unqualified individuals.

My problem then comes with Ricci's first case. I still hold the same assumption (and am inclined to say Ricci was right to bring suit under the facts as I have read them), but conservatives seem to hold the opposite position. Rather than say Ricci is just trying to use his disability to get a job he isn;t qualified for, they say that Ricci is a qualified person being discriminated against because he is discabled.

I'm not sure I see why (other than simple political convinience) one case generates one set of assumptions, while the other generates the other.
7.12.2009 3:37pm
Leo Marvin (mail):
If the Republicans are going to call Ricci, it's certainly fair for Democrats to point out he's Exhibit A to New Haven's argument that it threw out the test because it feared discrimination lawsuits from candidates it didn't hire.
7.12.2009 3:38pm
Cato The Elder (mail) (www):
I really thought most human beings, at least most Americans, shared a broad framework of human rights, that we had a psychic unity in this nation about basic values of fairness and merit. Brown was rightly decided 9-0 - classically American.

This case illustrates why, far too often for my liking, the Left disgusts me. It's not about the underlying theories of ideas like the proper level of taxation, social justice, egalitarianism, Rawlsian veils, what have you, because even though I disagree with the intrinsic value of those ideas, I can understand how honest people come to such philosophies. No, it's the way they conduct their politics - it's the stern refusal to draw lines in the sand, to defend the indefensible, to justify too many policies and actions simply because they want it and there's no other plausible way to get it. Earlier, I hadn't thought that water-boarding could be reasonably construed as torture, but when it emerged that one detainee had been subjected to the treatment something like 70 or 80 times, I had to stop defending the Bushies and began to support the partisan calls for an investigation. Yet for the Other, things evidently haven't changed a whit since the follies of the Cold War, and I sincerely hope in the future that history judges them harshly for it.

Loki said that this case was a favorite hobby-horse of mine. I guess it is; some of my friends in the Senate tell me I've got a one-track mind. I can't help myself, because the offending contradictions within the dissent and much of the opposing commentary quite literally grate in my mind to little avail. It really is quite a disconcerting feeling to watch a story come to life, as the pigs wander off with the cider with chalk upon their snouts, to no one else's attention but that donkey Benjamin.


We only had a couple of decades anyway.
7.12.2009 4:07pm
Pseuss (mail):
The most distressing thing about this post is the speed and quantity with which Sotomayer proponents, democrats, and/or just plain paid hacks hit the beginning of the comment thread, expertly diverting from a discussion of the original post to silly and pointless screaming.

The question is whether Ricci is being slimed by newspapers working in sympathy with the Democratic party. The answer is yes, of course, just as Joe the Plumber was, and Sarah Palin was. This is disgusting, and would be equally so from the Republicans or any other party or person.


Precisely.

The real problem is that Democratic officials know that they can rely on their allies in the media (and JournoList blogs, and tax clerks etc.) to do their dirty work for them.

An average person will be increasingly hesitant to draw attention to himself in a way that impedes the Democratic agenda.
7.12.2009 4:20pm
David M. Nieporent (www):
Maybe you've forgotten that he wasn't actually a plumber,
"Plumb⋅er  [pluhm-er] –noun 1. a person who installs and repairs piping, fixtures, appliances, and appurtenances in connection with the water supply, drainage systems, etc., both in and out of buildings."

In what way, exactly, didn't he fit that definition?

owed years of back taxes
"A representative at the court explained that Wurzelbacher had not paid $1,182.98 of personal income tax. The state filed a lien on January 26, 2007, and the payment remains outstanding. But the court rep also cautioned that this all may have occurred without Wurzelbacher's knowledge.

"We get hundreds of state liens every day and we don't have to make a judgment on them. We are just putting in there what the state says is owed. We don't notify that person and neither does the state. If there was activity on this lien, if they attempted to collect it on this case - which they haven't -- it would show up. But I am 99.9 percent positive that he doesn't even know about this."

I'm also not sure why owing taxes somehow impacts one's credibility when complaining about increasing taxes.
and his whole Horatio Alger story of buying the business was as flimsy as paper. Joe The Plumber only has credibility at Tea Parties and Palin rallies, and rightfully so.
I see you have your DailyKos talking points down perfectly. No substantive arguments, though.
7.12.2009 4:23pm
David M. Nieporent (www):
Scroll down to the comments in the McClatchy article. In particular the ones by some Hispanic people.
You mean by people who pretend to be Hispanic, but aren't, right? For instance:
"As a Latino and someone Fluent in Spanish. I want to make it very clear...At it's Leadership core, La Raza (The Race) is indeed racist. As a young student in the 1980's I was recruited by La Raza and out of curiosity attended their Rallies. When speaking in English there is a tendency to soft-peddle the message. But when the message is in Spanish, it's more strident and utterly racist. Their founding manifesto (El Plan de Aztlan) is itself a racist revolutionary violence inciting document. Not every member of la Raza is of this nature, but it's leadership cadre is fully aware of the founding principals of La Raza and it "Reconquista" message."
"El Plan de Aztlan" is the "founding manifesto" of MEChA, not La Raza. Since I know that, I think an actual person with the alleged biography described, as opposed to an anti-immigration nut pretending to be Hispanic, would also know that.
7.12.2009 4:32pm
Joe Y (mail):
Notmyleg: You assume that people are making assumptions; I live a few miles from New Haven and have a pretty good understanding of what the case entails. (How can you "strongly suspect" something about which by your own admission you know absolutely nothing?) If you read a decent story about it, you'll find that it:

a) has far more to do with the dreariest sort of corrupt machine politics;
b) the test--a test about how to fight fires, let's remember--was designed by a company expressly to avoid discrimination, and was approved as such;
c) some black firefighters did pass the test, at lower scores and some were promoted.

Derrick: Slimed is a partcularly poisonous from of ad hominem attack, deliberately and repeatedly lying about someone to make them seem personally repulsive, such as saying Sarah Palin forced rape victims to pay for their own rape kits, that she said she could see Russia from her house, that Trig was her granddaughter, etc.

Or that Joe the Plumber claimed he made 250K a year, that he was a massive tax cheat, that he was a vicious racist, etc.

Or, as the hack Lithwick does in Salon, characterizing Ricci as either:

a) "repeatedly victimized by a cruel cadre of employers..."
OR
b)"a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command."
...or perhaps, a guy who has clearly had to work very hard--as no one denies, although I'm sure some commenters will be momentarily--through a disability in order to have the career he wants. Along the way, he sued New Haven for unfairly denying him a job, a lawsuit that that was a qualied victory, then a firing he said was unjust, that the chief disagreed, and that was eventually resolved through official channels, which determined that Ricci was not unfired fairly.

That's two whole complaints, one found justified, the other not, in the last 14 years, besides the case under discussion. I'm not going to insult anyone's intelligence by "proving" Lithwick's crap is a slime-job, just read it, keeping in mind that there were whole complaints and that Ricci is a very hard-working man who overcame a significant handicap.

Don't get me wrong, Lithwick's had a much harder time of it than Ricci, coming from a wealthy family, having a prestigious professor and author for a father, going to Yale and Stanford Law...Ricci's life's been a walk in the park compared to what Lithwick's had to go through.

Loki13: Res Ipsa Loquitor is a simpler concept than you make it out to be. It requires some sort of a question to be answered, then proof that the question is sufficiently answered by information on hand. In order for your sarcasm to be effective, my 2nd statement would have to be a sliming, but, as I have shown, it's not.
7.12.2009 4:57pm
Joe Y (mail):
that is "fired unfairly," not "unfired fairly"
7.12.2009 4:59pm
loki13 (mail):
Cato,

I think that what I (and some others, I refuse to speak for "the left" or "moderates" os "statists" or "lawyers" or any other amorphous collective) had a problem with when I saw your many posts on this subject is a lack of, well, context.

Perhaps, unbeknownst to me, you have carefully considered both SCOTUS precedent as well 2d Circuit precedent whn coming to your ideas. Perhaps you did careful research about the history of Title VII. Perhaps you wwondered about the broader impact a change in the law (for that is what SCOTUS wrought) would have upon businesses who are now faced in a Catch-22.

The problem that I, and others, see is that this case has been dumbed down in some aspects, and, more importantly, instead of using this case as a broader inquiry about what we, as a society, want from our employment and civil rights laws, it is being used to attack a SCTOUS nominee for partisan purposes (who, again, was one of three judges on the panel, and a member of a circuit that voted to deny rehearing).

IOW, I think this case might have been a valuable way to look at several issues honestly that bedevil our society, from the way our law promote overlitiginous/protect employees (see also Frank Ricci) to the way some unions continue to protect white privilege (the 60% weighting was negotiated by the *union*, who not only networked certain members to provide study materials, but also tried to file an amicus in support of Ricci!), to the question of the changing nature of civil rights law- formerly used to desegregate society, now used for reverse-discrimination suits.

The trouble is, no one wants to have this honest conversation. Do I, personally, think Ricci got a bad shake? Yes. If a standard is announced, and you meet the standard, then it should apply. OTOH, because of the way Title VII operates, the change in the law now puts employers in something of a bind as well, and may likely lead to increased employment litigation.

The way to end discrimination is to stop discriminating. Well, yes. But in the real world, few advancements are purely merit-based. So we are stuck with a dichotomy-
1. Conservatives want to "end discrimination", which means that the status quo is preserved. They don't, however, seem to eager to do the bassoc things (improve the schools, fund more social programs) to allow minorities to compete on an even playing field. This allows the continuation of the power structure conservatives are most comfortable with.
2. Liberals want to just use affirmative action. In some ways this is successful; the more minorities that become middle class, have advanced degrees etc., the more networking opportunities and the less chance of discrimination (overt or subconscious) in the future. Unfortuntely, it has the dual effect of giving advantages to those who least need it (minorities in the middle class) and promoting people beyond their skill set, which furthers racial tension and adds to disrimination.

There are no easy answers. But you have to move beyond "Wise Latina" and see the broader implications.
7.12.2009 5:18pm
whit:

Here's my problem with whole Ricci situation. In the most recent case, each side makes a different assumption about the test. Conservatives assume that the test accurately selected the best firefighters, and the minorities were less qualified people looking for a handout because they were black


rubbish. you make a classic error. this test is ultimately about PROCESS. conservatives (rightly) emphasize the PROCESS. the PROCESS was fair. the test was announced, study materials listed, it came from a reputable source, and there is no evidence that there was any cheating or chicanery.

NOBODY with a brain assumes that ANY test necessarily selects the best firefighters. there IS no such test. promotion test, just like the admission process... is IMperfect.

liberals, to contrast, look at RESULTS not process. this is a fundamental difference between libs and conservatives when it comes to analysis of such cases. you hit the nail on the head while simultaneously missing it. liberals look at results. the results were (cosmically, to borrow from t. sowell) unfair. based on the rule of seven (which is the past practice and in effect rule in many agencies, including mine, as well as NHFD), no minorities scored high enough (actually iirc one of the guys who passed was white hispanic, but regardless) so the test was bad because the RESULT was bad.

over and over again, you see this. conservatives concentrate on PROCESS. liberals on results.

i have NO doubt that new haven could have used a better test. wonderful. they can do all the study they want to try to choose a better test next time, REALIZING that there is no way that a test will give (necessarily) both fair process AND fair result. because candidates are not always equal. just by the law of averages, sometimes EVEN IF white and black candidates are on average equally qualified, disparate results will happen. in fact, given sufficient "n" it's nearly inevitable.

regardless, the issue of process is this. the PROCESS was fair. and there is not yet ANYBODY saying the test was racially biased. nobody can point to the questions and say "question 12 is racially biased on here's why". so, the libs look purely at the RESULTS and extrapolate backwards.

furthermore, i don't find too much fault with the city. they were wrong, but they WERE reasonable to at least have some fear they'd get sued. iow, i think they acted in good faith. that's great. so they can't be individually sued. all the plaintiffs really want is justice. to get the promotions they rightly deserved and worked for.
7.12.2009 5:30pm
Desiderius:
Cato the Elder,

Love ya', mean it, but a pseudonym tells us something about what one values and aspires to be. It doesn't compel one to role play the character, not that there's anything wrong with that, this just isn't the place. If you don't need the pseudonym for professional reasons, as I currently do, I've found that using one's own name carries more weight.

As for the dirty tricks of the illiberal left, they are of course unseemly, but for a case against that left to stick, as opposed to a case against political operatives as a whole, there needs to be some contrast demonstrated between the various flavors of operative.
7.12.2009 6:52pm
Tony Tutins (mail):

Liberals assume that the test was flawed

No. Liberals believe that if that, based on the results of the test, employers fear that the test is flawed, the employer is free to discard the results of the test and substitute a new test.


liberals, to contrast, look at RESULTS not process.

Conservatives sound like bureaucrats perpetuating procedures for the sake of perpetuating procedures. Progress is made only when you start analyzing the results of your procedures, and you're open to change.
7.12.2009 7:13pm
whit:
tony, this is a LEGAL analysis. process is what matters, not results. it's called "rule of law" hth. by the results analysis, you could just keep readministering the test until you got the results you wanted. that's absurd.
7.12.2009 7:29pm
SG:
No. Liberals believe that if that, based on the results of the test, employers fear that the test is flawed, the employer is free to discard the results of the test and substitute a new test.

I have no doubt they were likely to be sued either way they went but as a practical matter if the test was fair (and I don't believe anyone has asserted otherwise) they should have an ironclad defense.

Your end result of your formulation argues that they should just dispense with testing entirely and substitute a series of lotteries, with separate categories for each racial/ethnic classification. The only way I can see to get to what you seem to want (always racially balanced outcome) is a strict quota system.
7.12.2009 7:43pm
A. Zarkov (mail):
David M. Nieporent:

José Angel Gutiérrez founded La Raza Unida Party, which also promotes El Plan de Aztlan. Some people confuse the United Council of La Raza with the former. UCLR is much too public relations sensitive to explicitly endorse El Plan de Aztlan at least in English. In any case, Gutiérrez's association with UCLR, and UCLR's policy positions could present a problem for Sotomayor. The public is likely to confuse the two La Razas and Sotomayor might end up looking like she supports El Plan de Aztlan even though she most likely does not.
7.12.2009 7:49pm
A. Zarkov (mail):
Tony Tutins:

"No. Liberals believe that if that, based on the results of the test, employers fear that the test is flawed, the employer is free to discard the results of the test and substitute a new test."


The liberals who assume that are innumerate because. As I have pointed out many times, the racial imbalance for the captain's test (I haven't done the other test) is not significant in that it could easily occur under a lottery system.

Too bad the lawyers and judges didn't have the right consultants.
7.12.2009 7:57pm
Tony Tutins (mail):

by the results analysis, you could just keep readministering the test until you got the results you wanted.

Huh? Where do you find the suggestion to repeat the same process? If the process is flawed, change the process. But whit can't fathom that the process could be flawed because the results confirm his prejudices.

I don't see how "the rule of law" mandates repeating the same thing, ad infinitum. As we see with the car companies, organizations must change processes or die.
7.12.2009 8:00pm
Tony Tutins (mail):

As I have pointed out many times, the racial imbalance for the captain's test (I haven't done the other test) is not significant in that it could easily occur under a lottery system.

In that case, those results should not be used to rank order candidates' eligibility for promotion, because they are indistinguishable from random chance.
7.12.2009 8:04pm
SG:
In that case, those results should not be used to rank order candidates' eligibility for promotion, because they are indistinguishable from random chance.

Do you honestly not understand, or are you being intentionally obtuse? The argument is not that the test results were random; the argument is that even a random test could have a racially disparate result. If it's flat out unacceptable (as opposed to undesirable) to have a racially disparate result then you simply have to have strict quotas - there is no other system, including completely unbiased random chance, that will not sometimes result in racially disparate results.

This is all independent from whether or not the New Haven test was fair. Given the disparate results, I think it's reasonable to review the promotion process to see if there was something racially discriminatory but if the process is found to be fair, even if non-optimal, the results ought to stand - discarding the results of a fair process due the racial balance on the outputs is by definition racially discriminatory.

Leaving aside that it's not legal, do you want a quota system?
7.12.2009 8:19pm
Tony Tutins (mail):

Do you honestly not understand, or are you being intentionally obtuse? The argument is not that the test results were random; the argument is that even a random test could have a racially disparate result.

If -- as you say -- random chance could produce the racially disparate results shown, then these test results are indistinguishable from random chance. If I am being obtuse, kindly distinguish for me the observed test results from those produced by random chance.
7.12.2009 8:27pm
Heh:

Huh? Where do you find the suggestion to repeat the same process? If the process is flawed, change the process. But whit can't fathom that the process could be flawed because the results confirm his prejudices.


On the other hand, you can't fathom that the process isn't flawed because the results confim yours :)

The reality is that it was a multiple choice test that anyone could have studied up for and passed. Some people obviously worked hard and scored high. Others did not. No one has shown any structural problems with the test itself.

It's interesting to note that in one article I read, one of the black firefighters complained that the test was written for "fire buffs". That was his only voiced complaint. But that complaint rings hollow to me; why couldn't he be a "fire buff"? No one was stopping him. Why didn't he buy some books, or get them through the library, or use the interwebs? Why didn't he, or his compatriots, become "fire buffs" if they knew that's what the test required?

I honestly can't understand this mind-set. When I was younger I worked for Bell Titanic. To get in I had to pass a series of written tests. I went down to the personnel (HR today) office and they gave me a study guide for the tests along with suggested reading materials. I went down to the library and got some books and studied for a few weeks, and then when I felt I was ready I went down and took the tests, and made it through. Before doing this, I literally had zero telephone experience outside of having made phone calls. None. And yet I became, for lack of better words, a "phone buff". And so did more than a few of my friends (they were recruiting for outside plant workers pretty heavily at my high school that year). And let's keep in mind, the union is very strong at the phone company, so I have to assume they were happily on-board with this method, where anyone could go study up and then pass a test to either get a job, or get on the list to get a job when an opening popped up.

To me, it just seems like a very fair way to hire people, and it removes the subjective opinion of hiring managers or prospective co-workers (who could just decide they don't like you and make up a reason not to take you).

I guess if the results of a very neutral and fair exam aren't the results someone wants to see, then maybe they should re-evaluate if they're looking for the right things in results in the first place.
7.12.2009 8:31pm
Leo Marvin (mail):
whit,

over and over again, you see this. conservatives concentrate on PROCESS. liberals on results.

To put it nicely, bullshit. I don't doubt that's what you see, but if so that just means you're lazy. If I indulge the temptation to see only the things that piss me off, like your comment, and let the equally ridiculous, obnoxious stuff from my side slide off my brain, then I'll be the one proclaiming that over and over again, you see liberals concentrate on PROCESS, conservatives on results. FISA? Torture? Hello?

There is no morally or intellectually superior or more honest "side" in our politics, where each side has over a hundred million Americans. Both sides, left and right, have more than enough of whatever you want to find, and not nearly enough of whatever you want to use to define them.
7.12.2009 8:35pm
SG:
If -- as you say -- random chance could produce the racially disparate results shown, then these test results are indistinguishable from random chance. If I am being obtuse, kindly distinguish for me the observed test results from those produced by random chance.

Random chance can produce any result, including racially neutral results. Would you argue for discarding a process that produced racially neutral results because random chance could have produced the same result?. That random chance can produce a particular result doesn't mean any particular result is random. This is basic logic: If A then B does not imply that If B then A.

The argument is a reductio ad absurdum. If the process were completely racially blind (i.e., random chance), but you discard the results due to the outcome, you've just instituted racial quotas. The point is that it's not enough to identify a racially neutral result - you need to identify a racially discriminatory mechanism that produced that result.

Are racial quotas what you want? If so, then openly advocate for them.
7.12.2009 8:40pm
SG:
The point is that it's not enough to identify a racially disparate result - you need to identify a racially discriminatory mechanism that produced that result.
7.12.2009 8:42pm
neurodoc:
I was going to jump back in here to contest posts about the selection process, in particular the test used, like those of Notmyleg (7/12 @ 3:37PM) and Tony Tutins, but I see that whit, A. Zarkov, SG, and Heh have already done an excellent job of the rebuttal.
loki13: the way some unions continue to protect white privilege (the 60% weighting was negotiated by the *union*, who not only networked certain members to provide study materials, but also tried to file an amicus in support of Ricci!
I'm sorry, I still don't get it.

Years before the test was put together by the company the city hired, the union negotiated that 60% weighting so as "to protect white privilege"?! How are minority firefighters disadvantaged by greater (or lesser) reliance on an objective written test for promotion purposes? Shouldn't greater reliance on an objective written test, one based on materials that all test takers could have used to prepare themselves, operate against the bias that can creep into subjective evaluations?

Those study materials were not available for purchase ($500 for the set) by anyone who wanted them, but rather they were like old exams and papers kept by fraternities for the benefit of their members and friends? The "networking" that the union supposedly facilitated (details?) operated exclusively for the benefit of white firefighters and could not readily be duplicated by minority firefighters? How about the Hispanic firefighters association mentioned in the NYT profile of Lt. Vargas, and the association of African-American firefighters I imagine must exist, they could not facilitate similar networking among minority candidates?

And the fact that the union (why the emphasis?) tried to file an amicus brief (they weren't allowed to?) on behalf of Ricci, that clearly (exclamation point) shows they are all about "protect(ing) white privilege"?!

Honestly, I don't see your case. Is this all you can adduce to show that the minority firefighters were disadvantaged by the test and procedures used?
7.12.2009 9:40pm
whit:

Huh? Where do you find the suggestion to repeat the same process? If the process is flawed, change the process. But whit can't fathom that the process could be flawed because the results confirm his prejudices.

if there was EVIDENCE that the process was flawed BY RACIAL BIAS (all promotion processes are flawed. iow, they are not perfect. that's the real world), then SHOW ME THE EVIDENCE. a mere disparate RESULT is not evidence
of racial bias. hth


The point is that it's not enough to identify a racially disparate result - you need to identify a racially discriminatory mechanism that produced that result.


exactly
7.12.2009 9:42pm
whit:

If -- as you say -- random chance could produce the racially disparate results shown, then these test results are indistinguishable from random chance. If I am being obtuse, kindly distinguish for me the observed test results from those produced by random chance.


rubbish. you clearly don't understand statistics, or my point, or both. given sufficient "n" ... iow sufficient examples, one would EXPECT to see racially disparate results on occasion, even given perfectly equal racial merit, preparation etc. if you flip a penny 10,000 times, you will see some amazing strings of heads in a row and tails in a row. it doesn't change the fact that there is still a 50% chance of a head or a tail on any coin flip. in fact, you will almost certainly see such strings. it doesn't follow that the coin is "head biased" cause you just had 6 heads in a row. and if you do 10,000 flips, your chances of having 6 heads in a row are exceptionally high.
7.12.2009 9:46pm
whit:

Huh? Where do you find the suggestion to repeat the same process? If the process is flawed, change the process. But whit can't fathom that the process could be flawed because the results confirm his prejudices.


i have no prejudice. i rely on data. i don't PREJUDGE. there is no EVIDENCE that the test relied on racially discriminatory means. until and unless an investigation reveals it did, then it's assumed NOT biased. nobody is saying you can't change the process. what ricci et al (and i ) are saying is you can't do it RETROACTIVELY. this was the test. it has NOT been shown to be unfair. it was announced, and people had ample opportunity to prepare. the PROCESS was fair. if you eliminate the results, you are screwing over the people who followed the rules, there is no evidence they broke them.


I don't see how "the rule of law" mandates repeating the same thing, ad infinitum. As we see with the car companies, organizations must change processes or die.



nobody has said they have to. NHFD can use a different test. NEXT time. they cannot retroactively erase the fact that the test happened, and the list was established. it was established fairly, per procedure, consistent with collective bargaining between the union and the city, etc. the results stand. NOBODY says they have to use the same test next time. if you had READ what i wrote vs. kneejerking, you would see i ALREADY SAID THIS
7.12.2009 9:52pm
Doc Merlin:
Not unexpected, conservatives and libertarians need to develop some hardcore backbone and anticipate this sort of behavior.

Remember if you come out openly against a progressive you will be given death threats, your private files read through, and you will be "SLAPP" sued into oblivion. Conservatives need to all stand up together so they cannot be singled out and destroyed individually.
7.12.2009 10:04pm
A. Zarkov (mail):
Tony Tutins:

"In that case, those results should not be used to rank order candidates' eligibility for promotion, because they are indistinguishable from random chance."


The test could have two components: (1) a measure of the skills, knowledge and ability for the job, and (2) a racial bias. A lack of (2) (effect=0) does not mean that (1) does not hold. One way to get a handle on the problem is to randomize the race labels and see what happens.

On the captain's test we had 25 whites taking the test along with 8 Hispanics and 8 blacks. With 7 positions open and the city mandated "rule of 3," an applicant must score in the top 9 to be promoted. Even if race had nothing to do with the scoring we would expect more whites in the top 9 because more whites took the test. Let's do a balls-in-urn experiment to simulate a lottery test.

Put 25 white balls, 8 brown balls, and 8 black balls in an urn and draw out 9 at random. How often will be get something that looks like a racial imbalance? There are many ways to define an imbalance, but let's use the "four fifths rule." First let's define a notation for the outcomes.

The outcomes take the form of triplets-- (W,H,B) where W varies between 0 and 9, H varies between 0 and 8, and B varies between 0 and 8. Note that W+H+B = 9 always. In the Ricci case, for the captain's exam, we have (7,2,0) as the actual outcome.

There are 55 possible outcomes, and 54 of them violate the four-fifths-rule! The one outcome that does not violate the rule has a probability of 12%. That means a lottery will violate the rule 88% of the time! Thus the four-fifths-rule will cause a false positive 88% of the time. We have shown that the four-fifths-rule doesn't work for the captain's test because even a lottery displays an apparent bias 88% of the time. This does not mean the test is an invalid measure of skills, knowledge and ability. It just shows you cannot detect a race effect. Now if we had a hundred times the number of people taking the test in the same racial proportions, then we could say something about the race effect.

Let me put it another way. Suppose 2 people took the test, 1 black and 1 white, and the white passed. Would you say that's evidence of a racial bias? Of course not, a sample of 2 is too small to make such a conclusion.

I don't know if you really don't understand the quantitative argument or you're just being difficult.
7.12.2009 10:21pm
loki13 (mail):
neurodoc,

To answer your question requires an overly long explanation that I don't feel like giving. For an introduction to the problem, please read The Ladder.

You might or might not find some of it interesting. As I have written before, I believe that the individuals, such as Ricci, who did not receive a promotion after the test was thrown out were done a disservice. But the law often does a disservice to individuals for a variety of reasons (see also Lily Ledbetter). I think that many people are overlooking the history of the fire department, the history of the union, and the nature of disparate impact.* Yes, Ricci and his fellow plaintiffs were screwed because they did everything they were supposed to do. OTOH, this is an oversimplification of a complex issue. I've written several substantive comments, supra, but since they seem to attract little attention, I... am.... outta he-ah.


*Perhaps you don't believe in disparate impact. Fair enough.
7.12.2009 10:26pm
Joe Y (mail):
I don't understand why some posters spend so much time speculating about the racial bias or lack thereof when any detailed story about this matter explains that the City of New Haven made a strong and conscious effort to eliminate such bias. Read from the opinion, starting from middle of page 31: supremecourtbrief

There was a much higher pass rate for whites than other minorities, but not nearly as much as claimed: "Forty-one candidates competed for the captain test — 25 whites, eight blacks and eight Hispanics. Of the 22 people who passed, 16 were white, three were black and three were Hispanic. With seven vacancies, seven whites and two Hispanics could have been considered." article

White pass rate: 64%
Black pass rate: 37.5%
Hispanic pass rate: 37.5%
7.12.2009 10:36pm
Desiderius:
Tony T.,

"If -- as you say -- random chance could produce the racially disparate results shown, then these test results are indistinguishable from random chance."

This statement isn't up to your usual standards. Try to decontextualize it and see if it still makes sense.

I'd guess you would have many allies here regarding the general content of your arguments (regarding the suboptimality of basing promotion decisions on written tests) in a different context, but the disagreement arises from the different perceptions about what distinguishes the context of this case from the general.

The fact that written objective tests are optimal in the case of government monopolies (given the history of political patronage/racial discrimination and the available alternatives) seems to me a strong argument against entrusting too many public functions to government monopolies.
7.12.2009 11:34pm
Tony Tutins (mail):

The point is that it's not enough to identify a racially disparate result - you need to identify a racially discriminatory mechanism that produced that result.

Why do I have to find a mechanism before I can toss the data? Why can I not use my experience and my gut feeling to decide that the test is flawed? For example, at least one black candidate was promotable in previous years -- what's different about this year?

If I leave leftovers at the back of the fridge, I'm allowed to throw them out if they reek when I finally open them. I don't have to culture them for bacteria. In fact, I can toss them even if they don't reek. When in doubt, throw it out.

My gut feeling is that whit would be severely handicapped on the job if the Supreme Court prohibited him from using gut feelings to make decisions. Call it experience, insight, intuition, or what you will.

Mr. Zarkov, I will play with the numbers you set up. Thanks.
7.13.2009 12:34am
whit:

Why do I have to find a mechanism before I can toss the data? Why can I not use my experience and my gut feeling to decide that the test is flawed? For example, at least one black candidate was promotable in previous years -- what's different about this year?


i really can't believe you are making these arguments, so maybe i'm spittin' in the wind, but i'll try to explain it to you. you are not merely tossing data. you are invalidating the test scores of REAL PEOPLE who followed the rules, and passed the test that YOU administered. there are issues of labor rights, collective bargaining agreement, not to mention fair play. there is NO evidence
the people who didn't pass were discriminated AGAINST on account of their race. new haven ADMITTED to discriminating against Ricci on account of his race. they couldn't have that many white guys who passed and no black guys. also, as usual, you get it wrong. when it comes to engaging in acts that deprive others of their liberty (such as traffic stops, searches, etc.) i cannot legally use "gut feelings". i must rely on EVIDENCE, facts and circumstances known to me. but let's stick to the TOPIC. ricci et al are not "leftovers". they are real people who have rights. rights under title VII. rights under collective bargaining, and just plain fair play. we set up RULES in our society to help minimize the extent to which people can arbitrarily make hiring, firing, and promotion decisions based on their gut, and it's verboten completely to do it on account of race (which is why ricci etc. were denied by new haven). if you are going invalidate the test that they prepared for, you administered, and that they passed, then the burden is on YOU to have a lot more than your "gut" before you throw out the valid, hard fought for, and procedurally valid test results.
7.13.2009 12:58am
Tony Tutins (mail):

if you are going invalidate the test that they prepared for, you administered, and that they passed,

Yeah, well shit happens. Maybe I don't understand because I never worked for government, and I've never been in a union, but working in private enterprise you soon lose your feelings of entitlement.
7.13.2009 1:04am
Desiderius:
TT,

"Maybe I don't understand because I never worked for government, and I've never been in a union, but working in private enterprise you soon lose your feelings of entitlement."

Exactly. Which is why "public options" are best avoided when practicable.
7.13.2009 2:20am
divine (mail):

and the even-more racist Judge Sotomomayor personally spanked him from the bench, laughing at his whiteness,



You got all that from a non-binding summary judgment that was explicitly done so as to not be a precedent? You sure do have some empathy!
7.13.2009 2:30am
whit:

Yeah, well shit happens. Maybe I don't understand because I never worked for government, and I've never been in a union, but working in private enterprise you soon lose your feelings of entitlement.


well yes. these are public civil service employees. but EVEN if they WERE private sector, it would still be illegal to do what they did because title VII still applies. you can't discriminate on account of race, and that's exactly what NH did.
7.13.2009 2:32am
NickM (mail) (www):

Anyone guess what those two men have in common with Sotomayor? Start researching.


None of them have ever been in my kitchen. :-)

Nick
7.13.2009 4:36am
divine (mail):

On the captain's test we had 25 whites taking the test along with 8 Hispanics and 8 blacks. With 7 positions open and the city mandated "rule of 3," an applicant must score in the top 9 to be promoted. Even if race had nothing to do with the scoring we would expect more whites in the top 9 because more whites took the test. Let's do a balls-in-urn experiment to simulate a lottery test.


But it's not as if there were "more whites". This is what happened.


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.


So, what is the probability of 0 AAs, <=2 Hispanics when picking 15 people from a list of 118 with 27 AAs, 29 Hisps, and the rest (62) non AAs?

(62 choose 15 + 62 choose 14. 29 choose 1 + 62 choose 13.29 choose 2)/(118 choose 15) = 0.00119130738

So, it is a vanishingly small chance of 1 in a 1000. It is like getting 10 heads in a row when tossing a coin, which is very unlikely.

So, the balls and urn argument makes exactly the opposite case that you want to, i.e. this test was so orchestrated as to heavily bias against equal opportunity.
7.13.2009 5:02am
divine (mail):

Remember if you come out openly against a progressive you will be given death threats, your private files read through, and you will be "SLAPP" sued into oblivion.


I knew it! George Tiller was against progressives!!
7.13.2009 5:06am
divine (mail):

2. La Raza Unida -- apparently the source of advocacy for the "reconquista" of "Aztlan." Sotomayor never belonged to this. Why she, daughter of Puerto Ricans, would give two flicks about giving the Southwest back to Mexico, remains a mystery.


Can't blame Sessions. All wetbacks look alike.
7.13.2009 6:40am
A. Zarkov (mail):
divine:

You are completely confused. You must analyze the two exams separately. Two different exams testing different skills on different sets of people. One exam could have a racial bias while the other doesn't. Before you can pool all the exam results you must justify doing that and I don't think we can.

A coin toss model is not the one to use because we sample from a finite universe.

How many whites took the captain's exam? Answer: 25.
How many Hispanics took the captain's exam? Answer: 8
How many blacks took the captain's exam? Answer: 8
How many positions for captain are open: Answer 7.

A total of 25+8+8= 41 took the captain's exam. This website provides the test results.

The ball-in-urn model means you put 25 white balls, 8 brown balls and 8 black balls in an urn and mix. The ball colors correspond to the 3 races taking the test. Just like the draft lottery only you mix properly. You seem to think this is like coin tosses. It isn't because there you use the binomial distribution. But that's for an infinite universe. Here we have a finite universe because there are 41 balls in the urn not an infinite number. We take out 9 balls from the urn because the New Haven "rule of 3" mandates promotion from the highest 3 scores at each turn. Thus an applicant has to score in the top 9 to have a chance at getting one of the 7 promotions. I hope this is clear.

After we select 9 balls at random from the urn, we count up the number of white (W), brown (H) and black (B) balls we get, and display the counts as a triple: (W,H,B). We must have W+H+B= 9. The actual scores for the captain's test was (7,2,0). But in our balls-in-urn model we could have (0,7,2) or (9,0,0), or (5,2,2), etc got that? There are 55 possible outcomes.

The probability model governing the ball-in-urn model is the multivariate hypergeometric distribution. Sorry to be so technical. If we had only two colors, then we would have the hypergeometric distribution. If we had two colors and an infinite number of balls then we would have the binomial distribution. The latter would be like tossing a coin 9 times. But it would have to be a properly biased coin. We could try to approximate the lottery by using white and non-white balls, making it a two color problem. Then we would need to assume that 41 is big enough to consider it infinite. But why settle for a crude approximation when we can do the problem exactly?

Finally of the 55 possible outcomes (triplets), 54 violate the "four fifths rule" for disparate impact. The one that doesn't (5,2,2) has a probability of 12%.

Thus for the captain's test, a pure lottery system would violate the "four fifths rule" 88% of the time. One can also do this by direct simulation and run it 10,000 times to get the probabilities. I did this to check the math and the two answers match. So unless I screwed up putting in the four-fifths rule, this result is definitive.

While my method deals with what actually counts-- making it into the top 9, it could be criticized.

1. It ignores the information in the numerical scores because it only deals with ranks. This might show that non-whites did get numerical scores that were so low that a race effect is present.

2. The test had an official pass score of 70%. If that were used as the cutoff then the sample sizes would be larger and the power to detect racial bias would be increased.

To deal with (1) and (2) we would need a parametric model and that itself would open up a possible argument as to what model to use. My approach makes virtually no assumptions. I did this example to show that the (7,2,0) result alone does not demonstrate disparate impact. People seem to think it does, but they are wrong. Again an analysis using the actual scores might reveal that blacks did really poorly on the test in an absolute sense. After all if their scores were (say) half of what they actually were, the ranking wouldn't change.
7.13.2009 7:20am
divine (mail):

The probability model governing the ball-in-urn model is the multivariate hypergeometric distribution


Yes, we understands that, master.

And I didn't use the binomial distribution
, I specifically used choose to deal with non-replacement rather than multiplying i.i.d probabilities.

I am, honestly, shocked that you didn't understand something this basic and are throwing around jargon without understanding the words.

(Also, We are not talking about four-fifths. We are talking about the specific outcome in this exam with no AAs and 2 hispanics in both exams combined.)

Let's take the first exam, since you want to do that.

The first exam had 41 people with 8 hispanics, 8 AAs, 25 whites. The results had 7 whites, 2 hispanics. The probability of at most 2 hispanics and no AAs in the top 9 are:

((25 choose 9) + (25 choose 8)*(8 choose 1) + (25 choose 7)*(8 choose 2))/(41 choose 9) = 0.0689471062

i.e. it will happen 7 out of 100 times.

Now let's take the other exam. That exam had 77 candidates, of which 19 were AAs, 21 were Hispanic, 37 were white. Now, what is the probability that the top 8 are all white, with no Hispanics or whites assuming that anybody is likely to be picked? The answer here is:

(37 choose 8)/(77 choose 8) = 0.00183480116 i.e 2 in a 1000 times.

So, these are very low probability events. This doesn't make them unlikely, of course, nor is it a slam dunk argument against Ricci. But my point is that your computational argument makes exactly the opposite case you are trying to make. And if you want to make your case based on this, you lose.

Also, before you refute my computations again, I'd recommend making sure you understand how balls in urns works, as well as the meaning of geometric, hypergeometric, and binomial distributions (oh, sorry for getting technical! :-). Maybe a probability text, or a 101 course will help.
7.13.2009 8:01am
divine (mail):
(Reposting my comment because indentation got a little screwy last time)


The probability model governing the ball-in-urn model is the multivariate hypergeometric distribution


Yes, we understands that, master. And I didn't use the binomial distribution, I specifically used choose to deal with non-replacement rather than multiplying i.i.d probabilities.

I am, honestly, shocked that you didn't understand something this very basic computation, and are throwing around jargon without understanding the words.

(Also, We are not talking about four-fifths. We are talking about the specific outcome in this exam with no AAs and 2 hispanics in both exams combined.)

Let's take the first exam, since you want to do that separately.

The first exam had 41 people with 8 hispanics, 8 AAs, 25 whites. The results had 7 whites, 2 hispanics. The probability of at most 2 hispanics and no AAs in the top 9 are:

((25 choose 9) + (25 choose 8)*(8 choose 1) + (25 choose 7)*(8 choose 2))/(41 choose 9) = 0.0689471062

i.e. it will happen 7 out of 100 times.

Now let's take the other exam. That exam had 77 candidates, of which 19 were AAs, 21 were Hispanic, 37 were white. Now, what is the probability that the top 8 are all white, with no Hispanics or whites assuming that anybody is likely to be picked? The answer here is:

(37 choose 8)/(77 choose 8) = 0.00183480116 i.e 2 in a 1000 times.

So, these are very low probability events. This doesn't make them impossible, of course, merely improbable. Nor is improbability a slam dunk argument against Ricci. But my point is that your computational argument makes exactly the opposite case you are trying to make. And if you want to make your case based on this, you lose.

Also, before you refute my computations again, I'd recommend making sure you understand how balls in urns works, as well as the meaning of geometric, hypergeometric, and binomial distributions (oh, sorry for getting technical! :-). Maybe a probability text, or a 101 course will help.
7.13.2009 8:06am
A. Zarkov (mail):
Divine:

Any one outcome is going to have a low probability. You have to sum over all the outcomes that qualify as being racially biased according to some criteria. Computing the probability of one specific outcome does not answer the question. I summed over all outcomes that violated the four-fifths rule because courts frequently use that as the rule of thumb for deciding disparate impact.

The probability of the actual captain's result (7,2,0) is 4%. But don't you think (8,1,0) and (9,0,0) would not have bothered New Haven even more than (7,2,0)? I'm sure (6,3,0) or even (7,1,1) or even (5,2,2) would also have produced some heartburn. We can't neglect all those other outcomes that would have caused the city to not certify the captain's test. Of course their rule was most likely subjective, so we don't really know what to include.

If you want to use your two-color model you need to define all the events that matter and sum over them, but you will only approximate my results.
7.13.2009 9:15am
Joseph Slater (mail):
Nick M. wins a deteriorating thread with the classic kitchen reference.
7.13.2009 9:17am
divine (mail):

AYou have to sum over all the outcomes that qualify as being racially biased according to some criteria. Computing the probability of one specific outcome does not answer the question.


Erroneous. The New Haven department wanted to throw out the results because they were so heavily biased, not because they violated the 4/5ths rule.


ny one outcome is going to have a low probability.


Erroneous. I compute probabilities of events <=2 hispanics, not just exactly 2. So I count up probability of 0 hispanics, and 1 hispanic person in the list. If you understand how I arrived at my results, you will see this.


I'm sure (6,3,0) or even (7,1,1) or even (5,2,2) would also have produced some heartburn.


Your surety about what would have necessitated Pepcid for others doesn't change the facts of why the NH fire department wanted to throw out the results.
7.13.2009 9:33am
divine (mail):

If you want to use your two-color model you need to define all the events that matter and sum over them, but you will only approximate my results.


Two color? Are you sure you aren't getting too technical for me? :)

I have defined the probability of the event that at most 2 hispanics and no AAs rank. So it is not "any one" event that I compute. I have shown you the exact formula I use, surely if you understood how balls in urns worked, you'd see this.

There is no approximation here, this is the exact probability of at most 2 Hispanic people and no AAs being selected.
7.13.2009 9:38am
Ursus Maritimus:

Could PAW be sued for false advertising and forced to change their name to People for the Unamerican Way?


Surely any court worth its pay check would find a way to declare the definition of "the American Way" a non-judiciable (political) question?



"Since capitalism is central to the American Way it would be proper for the rules for commercial speech to apply"
7.13.2009 10:22am
A. Zarkov (mail):
Divine:

"Erroneous. I compute probabilities of events [less or equal 2] hispanics, not just exactly 2. So I count up probability of 0 hispanics, and 1 hispanic person in the list. If you understand how I arrived at my results, you will see this."

Your outcomes are (9,0,0),(8,1,0),(7,2,0) with probabilities 0.00583135, 0.0246975, 0.0384183, which sum to .0689471, so we agree on the calculation!

But 8 Hispanics and 8 blacks took the test. Why would New Haven have a asymmetric criterion for rejecting the test? Why would (8,1,0), (7,2,0) bother them, but not (8,0,1) and (7,0,2)? Do you think NH favors blacks over Hispanics? If we add in the other two cases then we get 0.0689471+ 0.0246975+0.0384183= 0.132063. This is the right answer for your criterion if your criterion really is no more than two non-whites.

Thus 13% is the probability that not more than two non-whites get into the top nine scores for the captain's test under a lottery system. That's higher than the customary 5% used for statistical significance. Indeed even your too small by (just about) a factor of two of 7% exceeds this.

Two color? Are you sure you aren't getting too technical for me?

You are using the hypergeometric formula that applies to balls in an urn with two different colors. That's why you set the black count to zero so you can fake the three color case with two. However you could have gotten to the answer for the more appropriate criterion by doubling your original answer and subtracting 0.00583135. In other words, use symmetry and correct for the double count. As described I did three different colored balls in an urn which is overkill in the symmetric case, but it's just as easy for me to use the multivariate hypergeometric, so I did.

Finally where did you get New Haven's numerical criterion for rejecting the test? I missed that. Why is it more than two non-whites for the captain's test and not something else? Since I did not know what was in New Haven's mind I use the usual disparate impact rule of thumb. But it doesn't matter because no matter how you do it, we don't get a racial effect on the captain's test. I have not done the other test yet.
7.13.2009 1:15pm
SG:
I think you also need to include (7,1,1) as a failing case.
7.13.2009 1:38pm
A. Zarkov (mail):
SG:

"I think you also need to include (7,1,1) as a failing case."

Yes indeed. I got distracted by Divine's zeros. The (7,1,1) outcome has a probability of 0.0878132. Add this term we get 0.219876, or about 22%. So we have come a long way from Divine's original 6.9% all the way 22.0% after rounding. More than a factor of 3!

So If we accept Divine's idea that New Haven thinks that anything less than 3 non-whites in the outcome of the captain's test is grounds for decertification, then a lottery system would produce unacceptable results 22% of the time.

Thanks very much for the correction, I'm glad someone is pay attention.
7.13.2009 5:03pm
divine (mail):
The zeros are relevant because that's exactly how many AAs got in.

Also, why don't you do the math for the other exam, dearie, even accepting your contention that these tests are completely different. Let me know your numbers.
7.13.2009 10:49pm
A. Zarkov (mail):
divine:

"The zeros are relevant because that's exactly how many AAs got in."

We are analyzing a process more than the specific outcome. In other words, what happens under a lottery? To evaluate the lottery process we need to define what outcomes would cause New Haven to reject the results. If 7 whites got into the top 9 along with 2 blacks, would NH have rejected the test? They might have been more sensitive to no blacks, than to no Hispanics. I don't know. I don't think we can really predict what might have been without more information. In any case this is the kind of approach you have to take using frequentest statistics.

On the other hand, if we take a Bayesian approach, then we condition on the actual outcome (7,2,0) and estimate something like (k1,k2,k3), where k1+k2+k3= 9. Then we would get a conditional distribution (k1,k2,k3) (actually the distribution would be degenerate since the sum is fixed). That distribution could tell us something about the race effect. In this way 0 blacks qualifying would matter and affect the estimate of the distribution. Another approach would be to define a parameter than directly measures the race effect and get its distribution conditional on the actual outcome. I think that is the way to go.

I would opt for the Bayesian approach, because in general I think that's the way go. So in effect we are in agreement-- that the zero should count in the analysis. However courts are not exposed to the Bayesian approach much because most statisticians are frequentists.

"Also, why don't you do the math for the other exam, dearie, even accepting your contention that these tests are completely different."

I will do that. But bear in mind that there are pros and cons to pooling. If we pool and there is a common race effect, then we will have a greater chance of detecting it because the sample size is higher. On the other hand, if one test has a race effect and the other does not, then we might reject a perfectly ok test and ruin the promotion for that group. So we need to be careful in the pooling decision. In this case, I don't think we should pool unless the tests are basically the same. If I were doing this for real, then I would read through the tests, interview the applicants, gather field data and talk to captains. I might even go out with crews and observe what happens. Then I would write a report. If someone had done something like this a whole lot of problems might have been avoided.

Finally the existence of a "race effect" does not mean there is necessarily anything wrong with the test. Perhaps the blacks as a group didn't study as hard or as long as the whites. I assume the tests are not aptitude tests (little g loading) and test acquired skills, knowledge and abilities. But if the tests do look g-loaded then I would expect to see a race effect because we have 80 years of data that show a persistent gap between blacks and whites on IQ tests. Again if I were doing this for real I would get a psychologist to help me, and have him read the tests. However I'm sure the test designers know all about this and took efforts not to make them aptitude tests.
7.14.2009 1:02am
Michael Ejercito (mail) (www):

Oren, why does it require empathy to say (as the Supreme Court did) that ignoring a test designed by the city to be race-neutral violates Mr Ricci's rights? I'd think the SC's decision was the right one even if it benefitted a vile racist like ruuffles, someone for whom I have no empathy whatsoever.

One thing bothers me.

No one has ever shown how the content or administration of the test was racially discriminatory. Were white people given an extra ten points? Were different tests used based on skin color?
7.14.2009 2:15pm
yankev (mail):

Perjury can't be committed unwittingly. No perjury by mistake. Perjury is always a fully intended thing, and not everything untruthful said under oath is proescutable as perjury.
Two words: Scooter Libby (yeah, I know, that was obstruction of justice, but still based on an unsupported inference that disparity in recollection was proof of deliberate falsehood.)
7.15.2009 9:34am

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