Category Archives: The Courts

‘Wise Latina’ Loses

Affirmative Action, Constitution, Individual Rights, Justice, Law, Race, Racism, The Courts

Sonia Sotomayor’s Latina wisdom has come back to hurt and haunt her in the case of the New Haven Honkies, whose discrimination case she dismissed. So too is the Supreme Court’s blah blah Bader Ginsburg’s dissent noteworthy for its unwise quality. At least neither one of these Delphic ditzes carried the day. Reports the Christian Science Monitor:

“The US Supreme Court ruled 5 to 4 on Monday that the Connecticut city violated Title VII of the Civil Rights Act of 1964 by using race as the key criterion in refusing to certify a group of white and Hispanic firefighters for promotion.

City officials said they were afraid that if they promoted the white and Hispanic firefighters but no African-American firefighters, the city would be subject to a lawsuit by black firefighters. The high court disagreed.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote in the majority opinion.

The high court’s action overturns the 2008 decision of a three-judge appeals-court panel that included Judge Sonia Sotomayor, President Obama’s nominee to replace retiring Justice David Souter.

The New Haven firefighters case – and the Supreme Court’s view of it – are expected to play an important role in Judge Sotomayor’s Senate confirmation hearings next month.

The judge is believed to be a strong supporter of New Haven’s legal position in the case. In addition, it is unclear why her three-judge panel initially handed down a brief, unpublished, unsigned summary order disposing of the case without offering even cursory legal analysis.

Beyond the Sotomayor nomination, the decision is important because it provides guidance to employers that they may continue to rely on objective, work-related exams without facing a discrimination lawsuit from those who do not pass the test.

At the heart of the case were two competing provisions of Title VII of the Civil Rights Act. One section bars discriminatory treatment based on race or ethnicity. A different section urges employers to avoid making job-related decisions that create a disparate impact on minority workers.

If, for example, a city conducts an exam to determine which workers will be promoted and then no African-Americans are identified for promotion – that disparate impact on black workers is presumed to be illegal. The city is expected to correct the situation.

But the law also forbids employers from using race as the sole or primary criterion for hiring or promotions – including decisions that disfavor white employees because of their race.

In this way, New Haven found itself in a Catch-22.

Justice Kennedy and the other majority justices resolved this dilemma by ruling that New Haven needed a “strong basis in evidence” to justify its discrimination against white and Hispanic firefighters. He said a mere statistical disparity alone could not amount to the strong evidence necessary.

Kennedy added that once a fair test procedure is set, employers may not invalidate the results based on race or ethnicity. “Doing so … is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,” he wrote.

In a dissent, Justice Ruth Bader Ginsburg said New Haven had not engaged in illegal discrimination against the white firefighters because they had no vested right to a promotion.

She wrote that the majority justices ignored “substantial evidence of multiple flaws in the tests New Haven used.” She added that the court failed to acknowledge better tests used in other cities.

“The court’s order and opinion, I anticipate, will not have staying power,” she said.

[SNIP]

From “Beware of ‘Absolut’ Libertarian Lunacy”: “By petitioning the courts, when they should go gentle into that good night, white men like Ricci are seeking equality of results much as blacks do through coercive civil rights laws. … Ricci was wronged for excelling. He is not petitioning for special favors; he’s petitioning against them. If anything, Ricci is asking only that the city accept inequality of outcomes; accept that not all are created equal—and that he, more so than his less-qualified colleagues, is most suited to fighting fires and dousing departmental flames.”

Robert Bork: Sotomayor Pick 'A Bad Mistake'

Constitution, Law, Political Philosophy, The Courts

Robert Bork: Sotomayor Pick ‘A Bad Mistake’
By Barbara Grant

What does it mean, “to bork”? Readers too young to recall the 1987 Senate confirmation hearings on Robert Bork’s nomination as Supreme Court Justice might refer to this piece in which Judge Robert Bork discusses Sonia Sotomayor and calls her nomination a “bad mistake.”

To “bork” a nominee means to block him (or her) from appointment to public office. Bork avers that President Barack Obama’s standard of “empathy” in judge selection bodes ill for the selection of a justice who supports constitutional principles. He notes that “wise Latina” Sotomayor has less than a stellar record in her judicial opinions, and is in fact noted for bullying from the bench. However, he also offers that she will likely not be “any worse than some recent white male appointees.”

Bork calls himself an originalist, which means that he tries to interpret the Constitution in the manner it was drafted, at all times seeking first principles. This is different from the “judicial activism” principle currently held by many, in which justices twist the document to conform to preconceived political stances.

Robert Bork is adamantly opposed to twisting the Constitution; he also believes his opposition to Roe v. Wade on constitutional grounds was pivotal to his nomination’s rejection.

Where does the current trend toward “empathy” leave a highly principled man like Robert Bork? Still interested in the Constitution, but also wary of our justices’ decisions. “If you want to know what the constitution means, you will not learn it from the court,” he said.

BAB Contributor Barbara Grant is a consultant in electro-optical engineering and co-author of “The Art of Radiometry,” a forthcoming book on the measurement of light, to be published by SPIE PressB.

Robert Bork: Sotomayor Pick ‘A Bad Mistake’

Constitution, Law, Political Philosophy, The Courts

Robert Bork: Sotomayor Pick ‘A Bad Mistake’
By Barbara Grant

What does it mean, “to bork”? Readers too young to recall the 1987 Senate confirmation hearings on Robert Bork’s nomination as Supreme Court Justice might refer to this piece in which Judge Robert Bork discusses Sonia Sotomayor and calls her nomination a “bad mistake.”

To “bork” a nominee means to block him (or her) from appointment to public office. Bork avers that President Barack Obama’s standard of “empathy” in judge selection bodes ill for the selection of a justice who supports constitutional principles. He notes that “wise Latina” Sotomayor has less than a stellar record in her judicial opinions, and is in fact noted for bullying from the bench. However, he also offers that she will likely not be “any worse than some recent white male appointees.”

Bork calls himself an originalist, which means that he tries to interpret the Constitution in the manner it was drafted, at all times seeking first principles. This is different from the “judicial activism” principle currently held by many, in which justices twist the document to conform to preconceived political stances.

Robert Bork is adamantly opposed to twisting the Constitution; he also believes his opposition to Roe v. Wade on constitutional grounds was pivotal to his nomination’s rejection.

Where does the current trend toward “empathy” leave a highly principled man like Robert Bork? Still interested in the Constitution, but also wary of our justices’ decisions. “If you want to know what the constitution means, you will not learn it from the court,” he said.

BAB Contributor Barbara Grant is a consultant in electro-optical engineering and co-author of “The Art of Radiometry,” a forthcoming book on the measurement of light, to be published by SPIE PressB.

Updated: SotoSetAsides: 'I Am A Product Of Affirmative Action'

Affirmative Action, Intellectualism, Law, Multiculturalism, Race, Racism, The Courts

I’m shocked. Sonia SotoSetAsides once admitted that her test scores “were not comparable to her colleagues at Princeton and Yale” (with the exception of the scores of Mighty Michelle O). Nor were her scores on par with the scores of the forgotten students the system had helped her usurp.
I’m so disillusioned (irony alert to the prosaic among you). Weren’t we promised by the POTUS, another recipient of racial preferential treatment, that Sotomayor had a first-rate legal mind? Don’t tell me that this society has been hollowed out like a husk at every level—private and public; local, state and federal—by statist social engineering? And so, once again, we were right to call Soto so-and-so a mediocrity, a product of racial set-asides. It’s all so very shocking. You want to add Larry Auster’s analysis to the specter of Soto admitting that her test scores left much to be desired. (On the bright side, perhaps a dim liberal bulb will do less damage as one of America’s new black-robed deities):

Update: “Her academic career appears to have been a fraud from beginning to end, a testament to Ivy League corruption.”

“Two weeks ago, the New York Times reported that, to get up to speed on her English skills at Princeton, Sotomayor was advised to read children’s classics and study basic grammar
books during her summers. How do you graduate first in your class at Princeton if your summer reading consists of ‘Chicken Little’ and ‘The Troll Under the Bridge’?” …

“Thus, Sotomayor got into Princeton, got her No. 1 ranking, was whisked into Yale Law School and made editor of the Yale Law Review – all because she was a Hispanic woman. And those two Ivy League institutions cheated more deserving students of what they had worked a lifetime to achieve, for reasons of race, gender or ethnicity.”

“… were it not for Ivy League dishonesty, Sotomayor would not have gotten into Princeton, would never have been ranked first in her class, would not have gotten into Yale Law, nor been named editor of Yale Law Review, and thus would not be a U.S. appellate court judge today or a nominee to the Supreme Court.”

Who else but Pat Buchanan could deliver such masterstrokes? (Okay… I do quite well). The only facet Pat forgets to speak to: the loss of the importance of object, intellectual standards.