Sotomayor's Aversion to Impartiality

Why identity politics don't belong on the Supreme Court

Steve Chapman | June 1, 2009

The chief blot on Sonia Sotomayor's otherwise stellar professional record is a comment she made deprecating the capabilities of any judge lacking a Y chromosome and Iberian ancestry.

"I would hope," she said in a 2001 lecture on law and multicultural diversity, "that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The question for her supporters is: How do we spin that? It's not sufficient grounds to reject her nomination, given her excellent credentials. But it's still an embarrassment.

One possible way to handle it is a mea culpa by the nominee. She could say, "Let me explain what I meant to say," or "I used to believe that, but I now realize I was mistaken," or "Oh, man—what was I thinking?" Any of those tactics would defuse the controversy and allow the debate to proceed to a topic more advantageous to her.

Maybe when she gets to her confirmation hearing, Sotomayor will disavow the remark. But her supporters are taking another tack. They say this criticism is unfair, because critics have taken the quotation out of context and grossly distorted her meaning.

Sotomayor, they point out, also said judges "must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

Her allies have a point. Anyone who reads the whole speech will indeed find that her comment wasn't as bad as it sounds. It was worse.

What is clear from the full text is that her claim to superior insight was not a casual aside or an exercise in devil's advocacy. On the contrary, it fit neatly into her overall argument, which was that the law can only benefit from the experiences and biases that female and minority judges bring with them.

She clearly thinks impartiality is overrated. "The aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others," she declared, a bit dismissively. She doesn't seem to think it's terribly important to try to meet the aspiration.

That's apparent from the context. She said, "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging."

In more succinct terms: Sotomayor does not mind, and may even prefer, that the outcomes of cases are affected by the gender and race of the judge (at least when the judge is not white and male).

Judge Cedarbaum, she noted, "believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law." Does Sotomayor share that noble sentiment? Not entirely.

"Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society" (my emphasis). Which comes alarmingly close to saying: It's impossible for female and minority judges to overcome their biases, and it would be a shame if they did.

Underlying all this is Sotomayor's suspicion that white male judges are bound to treat minorities and women unfairly. She pointed out that "wise men like (Justice) Oliver Wendell Holmes and Justice (Benjamin) Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case."

Sotomayor didn't seem to notice the damage she had just done to her own argument. The Supreme Court that upheld that gender discrimination claim was composed of nine men—just as the court that ordered an end to racial segregation in public schools was all-white.

The court that upheld affirmative action by public universities had only one black member. There were no women on the court that found constitutional protection for abortion rights.

Right or wrong, the justices in those cases clearly strove to put aside their narrow personal interests and uphold the fundamental principles of the Constitution as best they could. Most Americans, most lawyers, and most judges, I would guess, believe that's exactly what judges should do. Why doesn't Sonia Sotomayor?

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Mad Max|6.1.09 @ 7:25AM|#

Perhaps a wise Latina woman *would* make a better judge. I would like to see some evidence that Judge Sotomayor meets that description. She's got two out of three, but as to wisdom . . .

And having a prestigious academic background doesn't make you wise. Wisdom isn't the same as intelligence, as any Dungeons and Dragons player could tell you.

Jeff P|6.1.09 @ 7:26AM|#

Call me sheltered, but is "wise latina woman" some obscure steroetype I'm not aware of? Granted I have known a few, but most latina women I have been exposed to are usually giving up their sons' location to Dog the Bounty Hunter...

yawn|6.1.09 @ 7:40AM|#

Postmodernism is so twentieth-century.

Anonymous|6.1.09 @ 7:58AM|#

Call me sheltered, but is "wise latina woman" some obscure steroetype I'm not aware of?

cf "noble savage", "oppressed minority", "The Race (La Raza)", feminist supremicy (womb as center of power, gender as political weapon), the collected works of Marx (underclass fomenting manufactured agitation to gain power over its targets)

wiseass|6.1.09 @ 8:15AM|#

You know what would be wiser then an Latin woman? A lesbian, enviromentalist, vegetarian latin woman.

|6.1.09 @ 8:16AM|#

Let us give props where props are due:

Well done, Steve. Bravo.

Bingo|6.1.09 @ 8:18AM|#

Can we please invade some country full of destitute brown people so I can stop seeing this woman plastered over every goddamn screen? There was a goddamn advertisement for her on TV at the gym the other day. What the hell is the point of advertising judicial pick??

Bingo|6.1.09 @ 8:23AM|#

Lordy, lordy, this is just embarassing. Pretty sure XY (male) vs. XX (female) is Bio 101.

|6.1.09 @ 8:26AM|#

Jeff P,

The wise Latina woman thing is a riff on something Sandy Day O'Connor said that a wise man and a wise woman would naturally come to the same conclusion.

She clearly thinks impartiality is overrated. "The aspiration to impartiality is just that-it's an aspiration because it denies the fact that we are by our experiences making different choices than others," she declared, a bit dismissively. She doesn't seem to think it's terribly important to try to meet the aspiration.

Isn't criticism of the liberal media predicated on this same exact principle? Not that impartiality is overrated, but that impartiality is a unicorn and that people, by nature, use their biases and experiences when making decisions, whether it's done as a judge or as a reporter. Is it a coincidence that the conservative Catholic judges all think Roe v. Wade was improperly decided? If they were impartial and their beliefs had nothing to do with their findings of the law, one would think that at least one would think otherwise. For example, see Thomas' dissent in Virginia vs. Black. His strong opposition to cross burning likely has something to with his past experience as it was one of the few cases where he was on the same side as Souter, Kennedy and Ginsburg.

ed|6.1.09 @ 8:38AM|#

Justice is not a blindfolded woman holding a sword and scales.
It's a frizzy-haired Latina, dispensing tacos.

Alan Vanneman|6.1.09 @ 8:38AM|#

Sorry, but I don't find Judge Sotomayor's statements so shocking. Yes, saying that the "rich" experience of a Latina should make her a better judge than a white dude was tediously self-congratulatory, but I seriously doubt if Sonia was the first minority to think that her personal experience made her wiser than the big shots.

Is there nowhere a Jew who felt that his experiences taught him things about "life" that a country-club WASP would never know? Aren't there blacks who think they're wiser than whites? Southerners who think they've suffered more than Yankees? Irish who feel they're better than the English? Catholics who think they know more than Protestants?

I strongly suspect that the recent Supreme Court hearing on the strip-searching of a 13-year-old girl by her school on ludicrous suspicions of drug possession would have gone very differently if the Court had been 8 women and 1 man rather than the other way around. And I would point out that Brown v. Board of Education (good decision) was the result of litigation brought by black men rather than white, just as Roe v. Wade (bad decision) was the result of litigation brought by women rather than men.

herdy-der|6.1.09 @ 8:40AM|#

Prediction: she is nominated with less than 60 votes. Obama and Dems seeth at such impudence and obvious racism.
Republicans rejoice for the next **** years at the wedge issue that has been handed to them, and recruitment efforts based on Santomayor alone begin in earnest.
Libertarians and all lovers of liberty bemoan another loss to the forces of statism.
Par for the course!

|6.1.09 @ 8:44AM|#

Alan V-

Your defense of Sotomayor boils down to a defense of group identity and group think. In and of itself, it is testament to mediocrity. Is this all we've got?

As for her empathy, have you read the Jocks case?

|6.1.09 @ 8:45AM|#

A Latina, a diabetic and a transsexual.

No wonder no one will oppose for fear of alienating all those voters.

Cabeza de Vaca|6.1.09 @ 8:45AM|#

"I strongly suspect that the recent Supreme Court hearing on the strip-searching of a 13-year-old girl by her school on ludicrous suspicions of drug possession would have gone very differently if the Court had been 8 women and 1 man rather than the other way around."

I really doubt that.

MNG|6.1.09 @ 8:51AM|#

"Isn't criticism of the liberal media predicated on this same exact principle?"

Please Mo don't confuse people.

Mike in PA|6.1.09 @ 8:51AM|#

Is she what we would have wanted? Hell no!

Is she qualified? Unfortunately, probably.

She gets in.

We have to do a better job of whom we allow to make these appointments, instead of trying to guard against them after the fact.

MNG|6.1.09 @ 8:53AM|#

" Is it a coincidence that the conservative Catholic judges all think Roe v. Wade was improperly decided?"

Check out Scalia's Catholicism in the Oregon euthanasia case.

MNG|6.1.09 @ 8:55AM|#

"Republicans rejoice for the next **** years at the wedge issue that has been handed to them"

The GOP doesn't need to attract any more angry white male Southerners, they've already got all of those guys. They could use Hispanic voters. So they are going to be on the wrong end of this wedge...

|6.1.09 @ 9:12AM|#

She probably won't get rejected. But it would be wonderful if she did. White people have been on notice for years now that you can't say stupid racist shit in public and expect to get anywhere. For the last forty years or so minorities have been given a pass from this rule. And it has helped to poison race relations in this country. You can't have a just society where minority racism is tolerated. It creates bad blood from the other side. And more importantly, it is condescending and racist as hell to minorities. It just says that minorities are somehow less than fully human. It says that they are somehow damaged by history. And thus we must tolerate racism from them where it wouldn't be tolerated elsewhere.

If she really did fail to get confirmation, it would tell every minoirty public figure that dumb racist shit is no longer tolerated at least at the highest levels. That would do more for race relations than the election of President McHopey ever will.

Barry Loberfeld|6.1.09 @ 9:12AM|#

And so the Left sees no racism even in its own exaltation of the race above the individual (i.e., racism's very foundation) because -- by virtue of that exaltation -- there are no individuals. "Racism" can therefore be only some kind of "inequality" between irreducible races, the sole denizens of the "multiculturalist" Weltanschauung, where the "structure" of pigment gives rise to the "superstructures" of culture. Essentially, the Left is bringing to race the same collectivist paradigm it brings to class, which is why its rejection of colorblindness shouldn't be in the least surprising: Collectivism needs collectives. That's why America is not a melting pot but a "salad bowl" -- an at-once insipid and ominous image for the revival of racial politics. That's why the legal equality of each individual's civil rights is as "illusory" as the legal equality of each individual's property rights. Leftism no more embraced the birth of racial impartiality than it did that of the market economy, preferring to conjure the twin zombies of racial primacy and racial conflict.

FROM "What's Really Reactionary?"

|6.1.09 @ 9:13AM|#

"The GOP doesn't need to attract any more angry white male Southerners, they've already got all of those guys. They could use Hispanic voters. So they are going to be on the wrong end of this wedge..."

So the way to get elected is to completely sell out your ideas of fairness? Do you really have such a low view of Hispanics to think that they will demand the rest of the country tolerate their racism in return for their votes? You really have a low view of them don't you.

Shawn|6.1.09 @ 9:19AM|#

I am not keen on Sotomayor's (inevitable?) appointment, but you guys are smelling more and more like a bunch of stubborn old get-off-my-lawn Republicans by the day.

|6.1.09 @ 9:22AM|#

"I am not keen on Sotomayor's (inevitable?) appointment, but you guys are smelling more and more like a bunch of stubborn old get-off-my-lawn Republicans by the day."

As a wise white male, I would hope I would be in a position to make that judgement better than someone who hasn't lived that life.

PR|6.1.09 @ 9:24AM|#

Is there such a thing as a wise Latina man? How wise are you if you don't know the answer to that?

|6.1.09 @ 9:44AM|#

So the way to get elected is to completely sell out your ideas of fairness? Do you really have such a low view of Hispanics to think that they will demand the rest of the country tolerate their racism in return for their votes? You really have a low view of them don't you.

Actually it's not that they are opposing Sotomayor, it's how. Call her liberal, say you don't like her judicial philosophy, point out how she's more likely to side with police power over citizen's civil rights, etc. That's the right and honorable way to oppose a judge. However, an easy way to alienate a large group of people is to insist that she's a mediocrity and affirmative action case (not just for this, but in her academic career) based solely on her last name and anonymous comments. Julian Sanchez covers it pretty well here.

BTW, I doubt that people here would say that there are far too many former prosecutors, and too few public defenders, on the Supreme Court and this leads to a tendency for the court to side with police over plaintiffs. If this is seen as relatively uncontroversial, why is it offensive when other experiences are pointed out as influencing a judge's philosophy?

|6.1.09 @ 9:51AM|#

Oops, this, "I doubt that people here would say that there are far too many former prosecutors, and too few public defenders, on the Supreme Court and this leads to a tendency for the court to side with police over plaintiffs" should say:

I doubt that people here would disagree with someone that says that there are far too many former prosecutors, and too few public defenders, on the Supreme Court and this leads to a tendency for the court to side with police over plaintiffs.

"However, an easy way to alienate a large group of people is to insist that she's a mediocrity and affirmative action case"

I agree with that. She is not a mediocrity. She is no less qualified than some of the other members of the Court. I do, however, think the "wise Latina" speech and her decision in Ricci are really troubling. Her opponents ought to make a princpled case why those two things were wrong. They shouldn't filabuster her. Let her have a vote and get on the Court if that is what the majority choses to do. But make the majority allign itself to the kind of naked racial pandering that the Ricci case and the "wise Latina" speech represent. Both of those things represent a lot of ugly, unpopular ideas that the left likes to pretend don't exist. In the end Hispanics won't remember anything beyond the fact that Sotomayer got confirmed. But the rest of the country will remember the lousy judicial principles she supports.

Spoonman|6.1.09 @ 10:00AM|#

Uh, I think the wise Latina comment is perfectly OK.

I'm white, male, heterosexual, and an ancap, for the record.

Neu Mejican|6.1.09 @ 10:00AM|#

Here is what Sotomayor said, "Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
...Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

http://www.politicususa.com/en/Beck-wise-latina

Neu Mejican|6.1.09 @ 10:07AM|#

I'll second the suggestion to read Julian Sanchez's discussion.

|6.1.09 @ 10:08AM|#

Here comes Neu Mejican with his "reasonableness" and "in context" quotes. Sheesh.

|6.1.09 @ 10:12AM|#

Fuck off Nutra Sweet. Even in context there is nothing reasonable about the quote. If anything the context is more offensive. The sentence " As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown." is in some ways worse than the "wise Latina" one.

What she is saying there is that the nine white men made the decision in spite of themselves. That the default position of any white male is to do the wrong thing. But that those guys rose above that and did the right thing. It is no different than when racist white people used to talk about the odd successful black man as a "credit to his race".

Neu Mejican|6.1.09 @ 10:16AM|#

John | June 1, 2009, 9:12am | #
She probably won't get rejected. But it would be wonderful if she did. White people have been on notice for years now that you can't say stupid racist shit in public and expect to get anywhere. For the last forty years or so minorities have been given a pass from this rule. And it has helped to poison race relations in this country. You can't have a just society where minority racism is tolerated. It creates bad blood from the other side. And more importantly, it is condescending and racist as hell to minorities. It just says that minorities are somehow less than fully human. It says that they are somehow damaged by history. And thus we must tolerate racism from them where it wouldn't be tolerated elsewhere.

If she really did fail to get confirmation, it would tell every minoirty public figure that dumb racist shit is no longer tolerated at least at the highest levels. That would do more for race relations than the election of President McHopey ever will.

[sigh]

Do you really believe this?

Taking your premise at face value, who is it that is giving this pass to minorities? Who is putting white people on notice?

The scenario you describe doesn't even approximate reality.

Neu Mejican|6.1.09 @ 10:19AM|#

What she is saying there is that the nine white men made the decision in spite of themselves. That the default position of any white male is to do the wrong thing. But that those guys rose above that and did the right thing. It is no different than when racist white people used to talk about the odd successful black man as a "credit to his race".

Actually, what she is saying is that NO MATTER WHAT YOUR BACKGROUND, you need to be vigilant and ACTIVELY attempt to balance your inherent biases with the perspectives of those that bring cases for judgment.

Mike M.|6.1.09 @ 10:20AM|#

The bidirectional weapon system of minority grievance and white guilt that the left has successfully imposed on the country over the last two generations is probably the strongest political force in America today.

And it's a system that they have absolutely no intention of ever voluntarily relinquishing, as it is the source of most of their power.

|6.1.09 @ 10:21AM|#

"Taking your premise at face value, who is it that is giving this pass to minorities? Who is putting white people on notice?"

The people who give a pass to minorities are people like you who don't see a problem with Sotomayer making racist statements. Who don't see a problem with groups like La Raza whose motto is "for the race everything, for everyone else nothing" or something to that effect.

White people and politicians are routinely run out of public life for even the slightest racial slip. As they should be by the way. Allen in Virginia had his political career ruined over the "macaca" remark. Don Imus lost his job over the statements about the Rutgers basketball team. Jimmy the Greek Snyder saw his career ended by saying black people were more athletic than whites. Larry Summners lost his job at Harvard for suggesting that women might be less interested in science than men.

What the fuck planet do you live on?

Neu Mejican|6.1.09 @ 10:26AM|#

The people who give a pass to minorities are people like you who don't see a problem with Sotomayer making racist statements.

Who are these people? Can you be more specific?
Be sure not to confuse people who do not see her statements as racist with those wouldn't have a problem with her making racists statements.

|6.1.09 @ 10:29AM|#

My take on this is that, while standards should be applied equally, nobody has any reason to complain when standards that they have espoused are applied to them.

What this means in general is that the racial grievance industry should either

(a) STFU about the uproar over Soyomayor's racialism

(b) say that since the same sentiment would be unacceptable if uttered by a white mail, Sotomayor should withdraw or

(c) drop their double standard.

I think she's minimally qualified, and so should be confirmed, although I bitterly disagree with what I know of her judicial philosophy.

I also think that its undoubtedly the case that she's not the best qualified of our Circuit Court judges, and was an affirmative action pick; Obama was quite explicit on the importance of her ethnic background in his announcement.

Urkobold™|6.1.09 @ 10:30AM|#

DISCRIMINATION! YES, YOU HEARD THE URKOBOLD RIGHT. THIS APPOINTMENT SMACKS OF DISCRIMINATION AND PREJUDICE! IN THE LONG HISTORY OF THE COURT, NEVER HAS A PRESIDENT--NOT ONCE--NOMINATED THE MOST IMPORTANT MINORITY OF THEM ALL!

Neu Mejican|6.1.09 @ 10:32AM|#

RC D,

Which circuit court judge would you have preferred?

vince|6.1.09 @ 10:51AM|#

Neu Mejican,
If you want an example, then how about the entire left and most of the press corp during Obama's rise the past few years. Obama writes a book in which he baldly states how good it felt to be hostile to the white race--among other racist statements--and the left holds him up as a transcendent post-racial lightworker.
Show me a white politician who makes such remarks, and who attends a White Power church with a racist preacher, and I'll show you a politician whose national ambitions vanish in a heartbeat.

|6.1.09 @ 11:00AM|#

Which circuit court judge would you have preferred?

Kozinski, Posner, are the two that come to mind immediately. I don't see how anyone could claim that Sotomayor is more qualified than Posner in particular.

|6.1.09 @ 11:01AM|#

This is nothing but a political appointment for the Dear Leaders re-election agenda. That jackass has never stopped campaigning and it looks like he won't over the next 4 years. Just another way to buy the votes.

Had this been a white male we wouldn't even be discussing it. That in itself says it all and shows how the double standard is in play.

The more whites become color blind the less the minorities do. I used to think it was just black vs white till I moved to Houston where the white male is the minority and relaized the blacks and hispanics are just as racist amoung themselves as whites ever were. Bottom line those in power want their race to run things, period.

|6.1.09 @ 11:02AM|#

RC,

Don't forget Tribe and Sunstein. Those guys are not judges. But they are giant brains that no one could argue didn't deserve to be on the court. And they are plenty liberal for Obama's taste.

|6.1.09 @ 11:06AM|#

How many of the people now screaming racism cared one iota about racial prejudice before they felt it being applied to white males?

Sotomayor's point can be made another way. If you happen to benefit from the status quo, it's probable that you haven't done a lot of thinking about why the status quo needs changing to protect people who aren't like you.

|6.1.09 @ 11:16AM|#

I found and read her speech with the single motivation of having defensive ammunition against a friend of mine who loves Rush Limbaugh. I read it with a sinking sensation: Steve has captured the problem quite well.

The Dems are like the Repubs: nothing matters but power, and hating the other guys.

None of them should be leading anything but a chorus of apologies and a parade to obscurity.

|6.1.09 @ 11:20AM|#

"Sotomayor's point can be made another way. If you happen to benefit from the status quo, it's probable that you haven't done a lot of thinking about why the status quo needs changing to protect people who aren't like you."

But that assumes that white males are always a part of the status quo and minorities are not, which in 2009 is obviously not true. At point do people like you need to understand that it is not 1955 anymore.

|6.1.09 @ 11:31AM|#

How many of the people now screaming racism cared one iota about racial prejudice before they felt it being applied to white males?

Me, for one.

|6.1.09 @ 11:33AM|#

Tony,

What you are saying is so rediculous. There are some people on here I can't stand. But I don't think there is any active poster who you could describe as racist. The next time some white guy in public life makes a stupid racist remark, feel free to post it on here and everyone will gladly pile on the guy.

|6.1.09 @ 11:34AM|#

Shut the fuck up Steve Chapman

|6.1.09 @ 11:39AM|#

John,

It may be 2009 but I guarantee you it is still not the case that white Christian males are a persecuted minority in this country, Limbaugh's mouth-foaming notwithstanding.

|6.1.09 @ 11:43AM|#

We have persecuted minorities in the United States?

"It may be 2009 but I guarantee you it is still not the case that white Christian males are a persecuted minority in this country, Limbaugh's mouth-foaming notwithstanding."

Who says they are a persucuted minority? All anyone is saying is that no one of any race, black, white, brown or beige, should be able to run around and make racist statements.

I don't see how the fact that white men are not persucuted minority somehow makes it okay to run around claiming racial superiority to them.

Mike M.|6.1.09 @ 11:47AM|#

We have persecuted minorities in the United States?

If anyone could remotely make this claim with a straight face today, it's probably Asian-Americans, who for some reason aren't deemed worthy by the left to get the benefits of their racial spoils system (in reality they get the opposite treatment).

|6.1.09 @ 11:48AM|#

Given the number of horrors inflicted upon humanity by white males one might almost say that racism against them is more justified than any other form.

Yet her statement is not evidence of racial prejudice. If you read the quote in context, appreciated nuance to any degree, and stopped listening to rightwing propaganda, you'd appreciate that.

|6.1.09 @ 11:52AM|#

"Given the number of horrors inflicted upon humanity by white males one might almost say that racism against them is more justified than any other form."

Are you really so ignorant that you think those horrors are somehow different than the horrors inflicted on the world by Asian men and American Indian men and African Men? The entirety of human history is a history of the default condition being one of horror. You really are not that stupid are you? Do you not know anything about the history of Asia or Africa? If you don't, you really are a racist since you apparently think that your race is so important that all of human history revolves around it.

|6.1.09 @ 11:59AM|#

John,

Indeed, perhaps we should just let women run things for a while.

|6.1.09 @ 12:02PM|#

"John,

Indeed, perhaps we should just let women run things for a while."

Women are just as bad. Show me a war like society. And I will show you a society where women encourage and value men of violence. People just suck. We can't help ourselves.

|6.1.09 @ 12:25PM|#

"Given the number of horrors inflicted upon humanity by white males one might almost say that racism against them is more justified than any other form."

Take a history class or read a book will ya. Man has been inflicting horrors on all shades of men as far back as we know. How would you relate your racism and horror with regard to Africa in this day and age? It is not whites killing them.

Oh and I am not sure where your from but there are many places in the US where the white male is the minority. They might be the larger group nationwide but the fact that Vermont and North Dakota have majority whites doesn't make you any less a minority if your a white in a non white majority area. Everything is relative to the location. Even thought they continue to use terms such as majority minority as though that makes sense. Especially when the places where blacks are a larger % of the population they are still considered a minority. It all depends which definition suits the race baiter best at the moment.

|6.1.09 @ 12:42PM|#

This is perhaps the silliest "controversy" I've ever witnessed. Sotomayor simply said that her life experience -- cultural and personal -- inform her decisions, not that this experience dictate them. Anyone who does not think his/her life experience informs their decisions must have gone through life without gaining any wisdom at all.

In Samuel Alito's confirmation hearings, he said:

"Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
[...]

"When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

At the time, this statement was proclaimed by his supporters as a good thing. But it, and Sotomayor's statement, is not really worthy of mention, much less outrage.

If impartiality/partiality is so easy to discern before a Supreme Court appointment, how is it that there are so many 5-4 decisions along party lines? Is swing-vote Stevens the only impartial Justice?

JP

Ellis Wyatt|6.1.09 @ 1:00PM|#

"Who are these people? Can you be more specific?"

Jesse Jackson and Al Sharpton are perfect examples. When Rush Limbaugh made his comments about Donovan McNabb a few years ago, they were all over ESPN to fire Rush. Meanwhile, they have nothing to say when Bryant Gumble gets on HBO and jokes about the "paucity of blacks that makes the Winter Games look like a GOP convention".

http://newsbusters.org/node/4057

alan|6.1.09 @ 1:17PM|#

God knows I hate jury duty, and thanks to Judge Sonia Sotomayor I have a plan to get out of it next time. I was going to to use Tina Fey's idea of dressing up as Princess Leia and claiming it unfair to the defendant that I can read minds, but, no this is much better.

I'll cross dress, maybe even keep the Leia garb, and when I am asked if I can be an impartial jurist, I'll recite:

I would hope, that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

That should do the trick. However, though it would get me kicked off a jury, it shouldn't impair my Supreme Court nomination. What a great country!

Neu Mejican|6.1.09 @ 1:30PM|#

John | June 1, 2009, 11:20am | #

...

But that assumes that white males are always a part of the status quo and minorities are not, which in 2009 is obviously not true. At point do people like you need to understand that it is not 1955 anymore.

No. It assumes that white males are always involved in determining the status quo, but that sometimes minorities are not. It is a subtle difference, but important to the point. It assumes that the experience of a white male is the prototype against which other experiences are placed in contrast. If you are a white male, it takes extra work to see this contrast. For those who are not part of this prototype group, the contrast is more obvious.

Neu Mejican|6.1.09 @ 1:39PM|#

I am having trouble with this...

Bryant Gumble gets on HBO and jokes about the "paucity of blacks that makes the Winter Games look like a GOP convention".

What is racist about the statement?
It may be anti-republican, sure, but how is it racist?

wayne|6.1.09 @ 1:40PM|#

John is right. NeuMejican is, as usual, impeneterably dense.

|6.1.09 @ 1:46PM|#

Sotomayor simply said that her life experience -- cultural and personal -- inform her decisions,

That's not all she said; if so, it would have been a pretty bland expression of "Legal Realism".

She also said that a Latina woman's life experiences are inherently superior to a white male's life experiences when it comes to being a judge.

anarch|6.1.09 @ 1:47PM|#

alan wins thread

wayne|6.1.09 @ 1:47PM|#

"Given the number of horrors inflicted upon humanity by white males one might almost say that racism against them is more justified than any other form."

Tony, are you "almost" saying that it's OK to be racist against whites, or are you actually going all the way and saying it?

alan|6.1.09 @ 1:49PM|#

No. It assumes that white males are always involved in determining the status quo, but that sometimes minorities are not

Given her ruling in the post Kelo takings case, where she supported a broad definition of 'public use', I have no doubt Sotomayor serves the interests of the status quo, but the idea that a flunky would determine the status quo? Perhaps, she'll do something as contrary to that as Thomas did in the Lopez decision, however, that is highly doubtful as Thomas showed an independent streak early on, and Sotomayor mouths the sort of platitudes you would expect of her.

alan|6.1.09 @ 1:53PM|#

Thanks anarch! Oh, and thanks Domoragato for the nomination on that thread from last week :)

Krell Sarloo|6.1.09 @ 2:06PM|#

Ah, good to see Tony back with his wonderfully fact-free comments.

It is interesting to speculate whether you believe any of the wild assertions you make.

But the there so beautifully devoid of substance that they can't really be responded to.

Must bee nice to think you've won because no one has bothered to answer you.

Neu Mejican|6.1.09 @ 2:35PM|#

wayne | June 1, 2009, 1:40pm | #
John is right. NeuMejican is, as usual, impeneterably dense.

So, there is a "right" answer on this topic?

Really.

Please, wayne, explain it to me in a non-dense way.

How is disagreeing with the assertion that her comments are racist the same as saying that I "don't see a problem with Sotomayer making racist statements."

For the record, it seems that taking SM's quote as racist, requires that you frame discussions in an us vs. them framework.

It is the racists identity politics of the liberals against the racially blind conservatives individualist conservatives.

Give me a break...talk about collectivist thinking... the xenophobia is palpable.

Neu Mejican|6.1.09 @ 2:50PM|#

Ellis Wyatt | June 1, 2009, 1:00pm | #
"Who are these people? Can you be more specific?"

Jesse Jackson and Al Sharpton are perfect examples.

This seems to say that Jesse Jackson and Al Sharpton have the power to "put white people on notice."

Do you really believe that?
If so, why would it matter.
They don't have any real power to wield.

|6.1.09 @ 3:03PM|#

Re: "She also said that a Latina woman's life experiences are inherently superior to a white male's life experiences when it comes to being a judge."

Her exact words were: "Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

And the previous paragraph of her speech set the context that women and people of color had changed the legal landscape in arguments before the Supreme court -- and also pointed out the significance of the fact that seminal decisions is race and sexual discrimination were handed down by all-mail, all-white Supreme Courts.

Those opposed to this nomination cut off the end of her sentence ("who hasn't lived that life") to create a sound bite they could throw rocks at.

So I think it really is "a bland expression of legal realism."

But if you believe her actual words translate to "a Latina woman's life experiences are inherently superior to a white male's life experiences when it comes to being a judge," then you must also think that Alito's words translate to "an Italian-American's life experience are inherently superior to those of a WASP when it comes to being a judge."

JP

|6.1.09 @ 3:05PM|#

So, no one would care to argue that there aren't stronger nominees available, and that we shouldn't take Obama at his word that Sotomayor was picked in large part for her ethnic background?

|6.1.09 @ 3:17PM|#

I suggest everyone go read Glenn Greenwald today where he illuminates Sotomayor's dissent in Pappas vs. Giuliani, in which she (dissenting from the majority) argued that a white cop was wrongly fired for sending racist emails, on first amendment grounds.

So I think we can all calm down and uncup our testicles--I don't think she's gonna impose Latina supremacy on you guys.

|6.1.09 @ 3:19PM|#

R C Dean,

For any nominee there will likely be more qualified people. At some point, however, it becomes purely subjective who is the most or even more qualified. That she's had more judicial experience than anyone nominated to the SC in a century and a first-rate academic record means she's as qualified as you could possibly hope for given the political realities of our time. If she were a white male you wouldn't have anything to say about her qualifications, and that's the main problem here.

Neu Mejican|6.1.09 @ 3:20PM|#

RC Dean,

So, no one would care to argue that there aren't stronger nominees available, and that we shouldn't take Obama at his word that Sotomayor was picked in large part for her ethnic background?

Are you saying that the president is expected to review all possible candidates and choose the "objectively" best qualified?

Once you are past the "good enough" bar, then other factors play a role in any choice like this. Do you really think the 9 best legal minds in the country have ever sat on the SCOTUS?

I mean, it seems pretty clear to me that Roberts was chosen IN PART because GWB couldn't picture a Chief Justice without picturing a white guy. It certainly wasn't because he felt he found the most qualified legal mind in the country.

Neu Mejican|6.1.09 @ 3:26PM|#

If she were a white male you wouldn't have anything to say about her qualifications, and that's the main problem here.

Are you calling RC D racist?

Teehee...

I want to see if anyone mounts an actual refutation to this point.

Neu Mejican|6.1.09 @ 3:32PM|#

If she were a white male you wouldn't have anything to say about her qualifications, and that's the main problem here.

To get the first shot out of the way...

"It is only because of Affirmative Action as in institutional solution to racism that minorities who succeed have their qualifications questioned. It is the unintended consequence of Affirmative Action and one among many reasons we should abandon affirmative action as public policy."

|6.1.09 @ 3:40PM|#

Tony, are you "almost" saying that it's OK to be racist against whites, or are you actually going all the way and saying it?

I'm saying if racism were ever justified it would first be justified against whites, who are mostly responsible for most of the problems in western civilization.

But I don't believe racism ever to be justified, since it's a stance taken out of intellectual infancy. I just don't buy that racism against whites is a problem except to people who find any minority advancement as a threat to them.

wayne|6.1.09 @ 3:57PM|#

"But I don't believe racism ever to be justified, since it's a stance taken out of intellectual infancy. I just don't buy that racism against whites is a problem except to people who find any minority advancement as a threat to them."

Good. So, you oppose affirmative action.

And it's not racism to to deny Mr. Ricci a promotion in the New Haven fire department because he is white. This is simple logic, he is caucasian after all, so naturally he should not be promoted. Makes perfect sense.

alan|6.1.09 @ 3:57PM|#

I mean, it seems pretty clear to me that Roberts was chosen IN PART because GWB couldn't picture a Chief Justice without picturing a white guy. It certainly wasn't because he felt he found the most qualified legal mind in the country.

You mean the guy who originally nominated Harriet Miers instead of Roberts as O'Conner's replacement?

So Bush (who I myself hate like a Fury), is the racist and sexist, and not the Democratic Senators whom it has been revealed in correspondence that is now public, systematically blocked Republicans who happened to be women and minorities from positions on the court because it would undermine their own ideology.

Specifically targeting women and minority candidates.

I'll be damned to understand how you live with yourself, Neu Mejican, but somehow you manage.

|6.1.09 @ 4:06PM|#

Good. So, you oppose affirmative action.

And it's not racism to to deny Mr. Ricci a promotion in the New Haven fire department because he is white. This is simple logic, he is caucasian after all, so naturally he should not be promoted. Makes perfect sense.

The way you have framed this case is absurd. In no way was Ricci not promoted because of racism against whites. He was not promoted because the city had little choice but to throw out the promotion exam since the outcome seems to have conflicted with affirmative action statutes it was required to honor.

It's a messy case, no doubt about it, but paying attention to whether minorities advance is not the same thing as racism against whites.

Neu Mejican|6.1.09 @ 4:13PM|#

and not the Democratic Senators whom it has been revealed in correspondence that is now public, systematically blocked Republicans who happened to be women and minorities from positions on the court because it would undermine their own ideology.

Specifically targeting women and minority candidates.

I have not seen these documents, but I would find this behavior unacceptable. As for the GWB pick, I had forgotten about Harriet Miers...and I don't want to give you the impression that I was accusing GWB of being a racist. He clearly is not. If he has a bias sin, it is a tendency to reward loyalty above all else...no matter the level of competence.

Neu Mejican|6.1.09 @ 4:15PM|#

I wonder if alan thinks I am a democratic senator?

Otherwise the "live with yourself comment" just makes no sense.

Neu Mejican|6.1.09 @ 4:16PM|#

For clarity.

I am neither a member of the democratic party nor a senator.

Neu Mejican|6.1.09 @ 4:21PM|#

And it's not racism to to deny Mr. Ricci a promotion in the New Haven fire department because he is white. This is simple logic, he is caucasian after all, so naturally he should not be promoted. Makes perfect sense.

He was denied promotion because his promotion resulted from a process that was deemed unfair (based on fairly standard criteria).

You see the difference, right?

alan|6.1.09 @ 4:25PM|#

Neu Mejican | June 1, 2009, 4:15pm | #
I wonder if alan thinks I am a democratic senator?

Otherwise the "live with yourself comment" just makes no sense.

I retract that, it was a bit overboard.

Neu Mejican|6.1.09 @ 4:35PM|#

alan,

No problem.
Your initial comment on this is, actually, pretty spot on. We all think that our particular experiences endow us with superior wisdom. That is why most people are above average drivers, and better than average lovers.

How many people attribute this to their ethnicity or astrological sign? Doesn't matter...it has its roots in arrogance.

What is impressive is how much hay people are trying to make of this very moderate, dare I say, white bread, choice.

alan|6.1.09 @ 4:39PM|#

For the record, Judge Sonia Sotomayor has more than enough experience to make her qualified. As a matter of judicial temperament, I would prefer another choice, and I felt the same for Roberts and Alito, there backgrounds suggested that they were picked for adhering to an Executive Branch Supremacist legal philosophy. I don't expect much out of them more than upholding the second amendment where a typical Democratic nominee would not, and for that I would be trading a restrictive interpretation of the first, forth fifth and fourteenth amendments when they butt heads with administrative precedent.

wayne|6.1.09 @ 4:45PM|#

"He was denied promotion because his promotion resulted from a process that was deemed unfair..."

I agree. Unfair to Ricci, and about twenty other because it was motivated by institutional racism.

You see the difference, right?

wayne|6.1.09 @ 4:51PM|#

"What is impressive is how much hay people are trying to make of this very moderate, dare I say, white bread, choice."

I would not characterize Sotomayor as moderate given her public statements about the inferiority of white men, and her statement about appelate courts as places where policy is made.

|6.1.09 @ 4:52PM|#

motivated by institutional racism.

The firefighting institution? The one historically dominated by white (Irish Catholic) males?

|6.1.09 @ 4:55PM|#

I would not characterize Sotomayor as moderate given her public statements about the inferiority of white men, and her statement about appelate courts as places where policy is made.

But why are you basing your characterization on precisely the two issues dominating right-wing opposition to her, rather than her actual record?

BTW, on the "policy" "controversy." Where no precedent exists appellate courts' decisions necessarily create policy, in effect.

wayne|6.1.09 @ 4:57PM|#

Tony, the promotion decisions in New Haven Fire Department are based on a written and oral exam. That sounds about as merit-based a method as any I can think of.

How should promotions be decided?

wayne|6.1.09 @ 5:04PM|#

"But why are you basing your characterization on precisely the two issues dominating right-wing opposition to her, rather than her actual record?"

Because the left-wing is too busy fawning over Obama to criticize anything he does. As to her record, I think it is fair to say that she had the opportunity to rule in Ricci's favor and failed to do so. So, add that to my list of why I don't think she will make a good addition to the supreme court. I suspect SCOTUS will rule in Ricci's favor.

Why are you so apparently willing to overlook these two issues? If a white (male) nominee had made the same remarks, I suspect you would be less forgiving.

|6.1.09 @ 5:05PM|#

>Given the number of horrors inflicted upon humanity by white males one might almost say that racism against them is more justified than any other form.

Yet her statement is not evidence of racial prejudice. If you read the quote in context, appreciated nuance to any degree, and stopped listening to rightwing propaganda, you'd appreciate that.

We did read the quote in context. That makes it worse, actually. I don't know if you are a regular here, but I doubt many of us are right wingers, and so saying that our criticism comes from right wing propaganda doesn't make a whole lot of sense.

wayne|6.1.09 @ 5:07PM|#

"The firefighting institution? The one historically dominated by white (Irish Catholic) males?"

I guess that is one difference between you and I. You are willing to deny Ricci (and everybody else) due process because of your (perceived) notions of historical racism; I am not. Why do you hate Irishmen?

|6.1.09 @ 5:09PM|#

wayne,

I don't think you understand the particulars of the Ricci case. In effect the defense's argument was that the city had no choice but to throw out the exam because it is required to adhere to certain affirmative action laws and that there was no active discrimination against Ricci. If the city had upheld the test results it faced even more potentially damaging lawsuits.

I expect SCOTUS to rule in his favor as well, but not because it would be the right decision. I don't actually know what the right decision is (if it were easy it wouldn't be at the SCOTUS in the first place), but I do know that using the case to label judges racist because of the decision they happened to arrive at is to be disingenuous.

|6.1.09 @ 5:15PM|#

I guess that is one difference between you and I. You are willing to deny Ricci (and everybody else) due process because of your (perceived) notions of historical racism; I am not. Why do you hate Irishmen?

I am an Irishman, and I happen to think we are awesome. What I was responding to was your ludicrous claim that there exists "institutional racism" against white men in an institution dominated by white men.

Some Guy|6.1.09 @ 5:18PM|#

Actually, I've been wondering why they haven't been trotting out the Hispanic guy who got denied a promotion due to the Ricci case. I'd assume he's not too happy about her, and would make a great spokesman for the opposition.

But maybe the GOP doesn't want to downplay the "she screwed over some white people" thing, which is why they always lose these fights.

|6.1.09 @ 5:19PM|#

"But why are you basing your characterization on precisely the two issues dominating right-wing opposition to her, rather than her actual record?"

I have a feeling the left is going to start getting pissed at us. We sided with them against most of Bush's policies for 8 years, and they thought we were a permanent ally. People on Daily Kos kept saying I was a Republican and not a real libertarian because I tended to go against Obama. We had the PATRIOT Act, interventionist, Christian Right president, so we went against that. Now we got the nationalizing, $1.7 trillion budget president, and a weak Republican party. Who do you think we're going to side with?

|6.1.09 @ 5:33PM|#

>I'm saying if racism were ever justified it would first be justified against whites, who are mostly responsible for most of the problems in western civilization.

Well, since Western civilization is historically white, that would be obvious.

>Sotomayor's point can be made another way. If you happen to benefit from the status quo, it's probable that you haven't done a lot of thinking about why the status quo needs changing to protect people who aren't like you.

First, she said white male. She didn't say rich white male. The poorest state in America is one of the whitest (West Virginia). And I love when Democrats want to change the status quo. Which of course, doesn't include the status quo of Democratic power. This is a libertarian site. We are all actively trying to change the status quo.

wayne|6.1.09 @ 5:39PM|#

"the city had no choice but to throw out the exam because it is required to adhere to certain affirmative action laws and that there was no active discrimination against Ricci..."

Then why bother with any notions of a merit-based system, why not just promote based on race and stop pretending?

You cite the affirmitive action laws as if they are legal, i.e. constitutional. Wasn't it Sotomayor's job to examine the lower court decision based on the constitution? Did she do so? Nope, she just said, "OK by me".

Neu Mejican|6.1.09 @ 5:41PM|#

West Virginia?
Is there boom going on in Mississippi that I missed?

But, more to the point...the only majority-minority states I know of are Texas, NM, and California...so you had a pretty good chance with that one.

Neu Mejican|6.1.09 @ 5:45PM|#

Then why bother with any notions of a merit-based system, why not just promote based on race and stop pretending?

The reason the process was deemed unfair was because it appeared to be doing just that...based on an assessment of the results it produced.

Can you quibble with the specifics of the reasoning the state had for throwing out the process?

|6.1.09 @ 5:47PM|#

J.T.,

I don't expect you to take sides, but I do expect you to do a little more homework than just repeating the latest right-wing smear, which anyone by now should know can't really be trusted on anything.

wayne|6.1.09 @ 5:51PM|#

"Can you quibble with the specifics of the reasoning the state had for throwing out the process?"

Of course I can. The results were a numerical ranking of the test takes. Those who passed with the highest scores were supposed to be promoted. Those who failed the test did not earn the promotion when compared to their peers.

The state's "reasoning" was, "Oh my God, it's all a bunch of filthy, Irish Catholics."

krazy kommenter|6.1.09 @ 5:51PM|#

I, for one, welcome our retractive overboards.

Neu Mejican|6.1.09 @ 6:00PM|#

wayne,

Swing and a miss.

You are making cartoon arguments against a caricature.

How is the city's claim that the process was having a disparate and therefore illegal impact on non-whites an example of institutional bias against whites? What was wrong with their reasoning. Did you feel they did insufficient statistical modeling (a reasonable claim, btw...with such a small n it would be difficulty to determine what the breakdown should have been...yadda yadda)?

Neu Mejican|6.1.09 @ 6:05PM|#

wayne,

Read this before you reply...it will raise the important questions.

http://mediamatters.org/research/200905260068

Feel free to dismiss this due to the source.
It won't surprise me.

wayne|6.1.09 @ 6:13PM|#

"How is the city's claim that the process was having a disparate and therefore illegal impact on non-whites an example of institutional bias against whites?"

Philosophically, I agree with Justice Roberts' statement: "The best way to end racial discrimination is to stop discriminating based on race".

In the New Haven case the decision to promote was (supposed to be) based on one's performance on a written and oral exam. That seems fair to me. Does this seem unfair to you, NM? Should merit-based results be disgarded in favor of racial spoils?

Rather than follow their own personnel procedures New Haven decided to throw out the exam results and promote nobody because they did not like the color of the successful test-takers. That is apparently satisfactory to you (NM) and Tony.

It baffles me how anybody can defend such a practice, but some do (Sotomayor, NM, Toney, et al).

Neu Mejican|6.1.09 @ 6:24PM|#

wayne,

Caricature, again?
Really?

Try again.

Why do you feel the personnel procedures that the city had in place, which included review of the test to determine its fairness, were biased, while a subset of those procedures, the test, were unbiased?

The city workers who designed the test were halo wearing saints with perfect knowledge of what merit looks like, but a different set of city workers who questioned there results were racists?

Is that your position?

wayne|6.1.09 @ 6:27PM|#

NM, if all of the successful test takers had been African-American, do you think New Haven would have refused to certify the results?

Neu Mejican|6.1.09 @ 6:34PM|#

wayne,

Darn tooting they would have...do you REALLY think they wouldn't have?

Neu Mejican|6.1.09 @ 6:40PM|#

For the record wayne,

About 1 out of 4 test takers were black.

wayne|6.1.09 @ 6:43PM|#

Wow!

No, I don't think New Haven or any other municipality would dare to deny a group of African-Americans promotions because they passed a test. Such an action is inconceivable to me.

Do you honestly think the New Haven process was rigged somehow to exclude blacks?

Neu Mejican|6.1.09 @ 6:56PM|#

Rigged, no.

Having a disparate impact (the legal standard)...perhaps.

On its face it seemed to be and the question, as I see it, is whether the city's rejection of the test results was a good faith effort or not. Maybe they should have done more work to demonstrate what they saw as disparate results. Maybe the face validity was good enough.

wayne|6.1.09 @ 6:59PM|#

Do you think Ricci and the others who passed the test were treated fairly? Does fairness matter?

wayne|6.1.09 @ 7:03PM|#

To refute one of your points. The test was not designed by "city workers".

"New Haven had hired a consultant to create the test with the goal of eliminating any potential bias that might cause minority applicants to score lower. The consultant advised the city to approve the test results and promote the firefighters who passed. [1]"

http://en.wikipedia.org/wiki/Ricci_v._DeStefano

Neu Mejican|6.1.09 @ 7:56PM|#

wayne,
I saw that...I don't really see how that refutes my point, however. You still have one aspect of the process (creation) being called into question by another part of the process (review).

Why is the creation step inherently fair, while the review process is not? Is it simply because the consultants were hire "with the goal of eliminating bias"? Does the fact that the results, on their face (and after review), appeared to be biased have no role to play in the city's assurance that the process is fair.

As for the advice of the consultant. If they were given a contract to create an unbiased tool that failed on that count after review, do you not think they would be a less than objective source to judge the merits of the test?

Neu Mejican|6.1.09 @ 8:00PM|#

wayne | June 1, 2009, 6:59pm | #
Do you think Ricci and the others who passed the test were treated fairly? Does fairness matter?

Yes, which is why such a high premium is being placed on the fairness of the test. If the test was unfair, it was unfair. Fairness is not served by taking only the interests of those who passed into account. Just as it would be wrong to only consider the impact on those that failed.

That is why I say this comes down to whether the city made a good faith effort or not. IF they did, they should have considered the impact on both groups in their decision making process.

wayne|6.1.09 @ 8:14PM|#

"Why is the creation step inherently fair, while the review process is not?"

To my knowledge nobody has questioned whether the test is/was biased. The city simply saw the results and panicked at the prospect of extortion at the hands of Sharpton, et al.

If racial quota results is the only goal then why bother testing, why not just promote based on solar reflectivity?

wayne|6.1.09 @ 8:15PM|#

"If the test was unfair, it was unfair."

Was the test unfair? How so?

vince|6.1.09 @ 8:17PM|#

Neu Mejican,

You really need to give some thought to your assumption that "disparate impact" is a valid concept.

Here's a start:

http://isteve.blogspot.com/2009/05/slate-well-actually-it-isnt-mystery-why.html

</a|6.1.09 @ 9:37PM|#

Darn tooting they would have...do you REALLY think they wouldn't have?

BWAHAHAHAHAHAHA!!!

Neu Mejican|6.2.09 @ 12:00AM|#

vince,

Legally, it is a valid concept.
Statistically, it can be a valid concept.

It is, however, exceeding hard to demonstrate in a statistical sense when you are dealing with small groups, and complex situations.

But legally, as I mentioned above, the question is not about the statistics...it is about whether the city acted in good faith to try and reduce bias. Either way, they are acting against a group that is defined on race.

wayne,
The city who administered the test determined after review that the results were biased...that is why they nullified the results. You can quibble with their review process if you want.

Neu Mejican|6.2.09 @ 3:07AM|#

wayne,
You probably won't come back to this, but I'll check it once more tomorrow.

To my knowledge nobody has questioned whether the test is/was biased.

The whole case hinges on a claim by the city that the test is/was biased. Do you have any familiarity with the details?

It is important to note that the city went through an extensive review process before rejecting the tests as biased. A major factor in their decision was the opinion of their officers that the test used did not test the skills necessary for the job. They also took advice from testing experts who felt that there were other methods of determining merit that would produce more valid results.

If that isn't a good faith effort to be fair, what would be?

Who knows what SCOTUS will do with this case, but I doubt you will see an end to the provisions in the law related to disparate impact.

MJ|6.2.09 @ 7:17AM|#

"The whole case hinges on a claim by the city that the test is/was biased."

By what standard did New Haven consider the test biased beyond an insufficient number of minorities passed? That seems to be an extremely weak argument to throw out the results on. How the indidviduals who spent money and time preparing for this test in a reasonable assumption that they would be judged on it got hosed on the basis of the collective group identities of who passed and failed. How is that just?

Neu Mejican|6.2.09 @ 11:03AM|#

By what standard did New Haven consider the test biased beyond an insufficient number of minorities passed?

That was the reason they looked into the test, but not the only evidence they used to reject its results. They looked at the fact that results from this test were an anomalous compared to previous years, held hearing, collected testimony from fire fighters indicating that the test was not relevant to their job, talked to test experts who gave the process a poor score, etc...

|6.2.09 @ 11:19AM|#

Sotomayor believes she is a saint for NOT being impartial. Granted America's native sons and daughters no longer count, I fear that those who have been here for generations will actually be marginalized for a history they had nothing to do with. She believes that impartiality is overrated. But she does not realize that it was impartiality that did secure rights for minorities, and why she was able to get the opportunities she got here in the States...there were privileged white men who saw past their own prejudices to give immigrants and minorities a chance in this country, and that is why Sotomayor can sit on the bench of the Supreme Court (She needs to remember this).

|6.2.09 @ 11:56AM|#

>West Virginia?
Is there boom going on in Mississippi that I missed?

They tend to rotate. It's always one of them.

|6.2.09 @ 12:01PM|#

Also, the article itself, even if it uses "right wing propaganda" doesn't dismiss her solely on those statements. It is quite clear that the author would not have so much of a problem if she, or the Democrats, called it a misspeak or something. Instead, they tell us to look at the context. In context, it is clear the statement means exactly what we thought it meant. You can't justify the quote with the context, because the context just makes it more troubling.

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