Ricci and the Republicans

Two smart posts over at Eunomia about the Ricci case, First, this:

An important point about the case that has been left out in many accounts is this:

In part, the city’s reaction was defensive. Because of the magnitude of the racial disparity on the exams, which would have ensured that white firefighters received the great majority of the promotions, an attorney for the city concluded that there was a strong likelihood of a lawsuit by African American and Latino firefighters if the promotion list generated by the test were used. Since Title VII was signed into law in 1964, it has been illegal for employers to use tests that have an unjustified racially “discriminatory effect.”

What this means is that the appeals court ruled against Ricci because it recognized that New Haven had tried to avoid a lawsuit that would have been possible and likely successful because of current law. In other words, the city tried to avoid falling afoul of the law, and the court did not penalize it for doing so. What is to blame in all of this is the law, rather than the judges who seem to have done what they were supposed to do. Indeed, what some people seem to have wanted to see Sotomayor do is to punish New Haven for trying to stay within the limits of the law, and for failing to do so she is declared to be an enemy of the rule of law. I submit that this doesn’t make a lot of sense.

Followed up with this observation in a post ridiculing the esteemed author of Liberal Fascism:

There is something eerily similar to conservative reactions to the Ricci case and the common conservative reaction to the rulings of the courts in the Schiavo controversy: the actual substance of law in the matter was fairly straightforward and clear, but it yielded a result that many conservatives found unacceptable, and they therefore sought all manner of political remedies to undo the reasonable decisions of the courts. Rather than locating the problem in the law or in the unusually difficult circumstances of the case in question, conservatives determined that it was the judges who were the problem. There is also a similarity in the schizophrenic reactions to Sotomayor (defender of the bankrupt system! no, crazy radical! maybe both!) to the way conservatives vacillate between accusing Obama of being a hypocrite and liar (”he promised change, but he’s just continuing Bush’s policies”) and freaking out about the approaching dictatorship of the proletariat that he will supposedly usher in. For my part, I have not had any illusions that Obama was anything other than a conventional establishmentarian, and this was obvious all along, and in choosing Sotomayor he has shown yet again how he can make a rather boring status quo decision seem much more momentous and remarkable than it is.

Maybe boring is what we need right now? At any rate, I thought these were rather astute observations.

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41 replies
  1. 1
    rnrkennedy says:

    I thought these were rather astute observations.

    Pretty much any observation Larison makes is astute. Same goes for you, John.

  2. 2
    SpotWeld says:

    Maybe boring is what we need right now?

    Hell yes!

  3. 3
    pharniel says:

    Y’know, I radically and passoinatly disagree with Larson about alot of religious and personal matters but I still read him because I know he is at least a rational actor who’s opinions and behavior are based on fairly extensive socratic questioning.

    Which means while I disagree with him I can at least be assured that he is usually not just making it up as he goes along and I will probably learn something in reading just about any of his posts.

    The ones where wingnuts are crazy and hate actual conservatives, otoh, are full of things I learned from DougJ and John.

  4. 4
    cleek says:

    so-called conservatives advance philosophically-incompatble arguments because their only real gripe is that they’re not in power ?

    two fingers and a pinky – what a shocker!

    but, yeah: Larison is 100% correct. too bad for him and the rest of the conservative collateral damage.

  5. 5
    gbear says:

    Maybe boring is what we need right now?

    Sorry, the right could find a way to go bonkers over Obama making Pop-Tarts for breakfast. Boring is not an option anymore.

  6. 6
    KidA says:

    Thanks for this and all your, all of you, efforts.

  7. 7
    lovethebomb says:

    The wingnuts know that when you have to explain a decision to this extent, it is several levels beyond the average voter, esp in the south. Que footage of firefighters on 911, she hates them because they are white. She sullies their honor and their sacrifice, ect.

  8. 8
    Mnemosyne says:

    The more I read about Ricci, the more it sounds like the guy could have had a good case under the ADA to get accommodations for his dyslexia, and probably passed the test. But, no, he had to go the racial route and insist that he’d been discriminated against because of his skin and not because of his disability. What a wanker.

  9. 9
    Paula says:

    Well, Obama’s had a nice hand dealt to him in regards to following W. If he pronounces the word “nuclear” right, we all sigh in relief. If Obama gets to have an easy ride in terms of allowances, it’s because many conservatives set it up for him by their excesses and ineptitude.

    As for a “boring decision”, it’s true that Sotomayor is, to judge by her record, a moderate with exemplary but unsurprising credentials.

    However, as a “conservative”, how much radicalism in that office would Larison support? If she got her degree from Boalt rather than Yale Law? If she was a long-term practicing Civil Rights lawyer rather than a judge for 20 years?

    Furthermore, the project of diversifying our most conservative branch is not exactly insignificant not only for the space that it carves out for future Sonia Sotomayors but also for the ongoing cases of affirmative action, discrimination, criminal law and abortion rights that SCOTUS will continue to deal with. Once again, not to say that I “expect” Sotomayor to be a reliable liberal in these cases, but that her perspective, particularly in how opinion is written out, will be important in the way law is interpreted in the years during and after her tenure.

    Even when conservatives are being smart they don’t know how to imagine things in “relative” terms — it’s like they’re allergic.

  10. 10
    TR says:

    Pretty much any observation Larison makes is astute.

    Yep. Which is why he’ll never make it to The Big Leagues while Bill Kristol keeps bouncing around from one major op-ed page to another, leaving a trail of corrections notices and incompetence in his wake.

  11. 11
    JasonF says:

    Here’s the thing about Ricci: When conservatives rail against affirmative action, they invariably explain that they are simply looking for a level playing field in which whites and blacks can compete fairly, may the best man (or woman) win. So now along comes the New Haven fire department with a test to see who gets promoted, and lo and behold, none of the people who score well enough to be promoted are black. Now, there are two reasons for this. One possibility — the possibility that the city of New Haven found most plausible — is that the test was improperly biased, that it did not do what conservatives claim to want (create a level playing field where the best person can win). The other possibility is that black firefighters in New Haven are inherently inferior to white and Latino firefighters, and that is why the black firefighters performed relatively poorly. The attacks on New Haven implicitly (and in some cases explicitly) adopt this second explanation.

  12. 12
    smiley says:

    In other words, the city tried to avoid falling afoul of the law, and the court did not penalize it for doing so. What is to blame in all of this is the law, rather than the judges who seem to have done what they were supposed to do.

    What I almost never see mentioned is that, in my understanding, the 3-judge panel voted unanimously on the Ricci case. Why is it Sotomayor’s fault? Did she write the opinion?

    Also, I’m seeing less of this and more of the calling her a racist for that comparing a Latina judge to a white male judge quote. The Ricci issue must not have been sticking to the wall of the base whereas the racism thing is.

  13. 13
    eric says:

    Here is a dirty little secret: nearly the entirety of the federal judiciary is no more Left than moderate. There are no (liberal) radicals lurking there to be nominated. There are, of course, conservative radicals, but no liberal ones. Then, when you look at the universe of judges under 55, the few remaining lefties fall away, particularly if you are looking at Circuit Court judges under 55.

    I would love to see a list of the truly liberal radical judges sitting on the Circuit Courts. it will be a very short list of zero.

    American political discourse getting cheapened all the time.

    eric

  14. 14
    Dave S. says:

    @gbear: Are those Dijon Arugula Pop-Tarts? What kind of countertop is the toaster on?

  15. 15
    Indylib says:

    @Mnemosyne:

    I could be wrong about this, but I thought I read in one of the innumerable posts I’ve read about the Ricci case in the last 2 days that he did pass the test, despite his dyslexia.

  16. 16
    NonyNony says:

    @Mnemosyne:

    The more I read about Ricci, the more it sounds like the guy could have had a good case under the ADA to get accommodations for his dyslexia, and probably passed the test.

    You need to read more about the Ricci case, then, because the problem wasn’t that he didn’t pass the test – he DID pass the test. The problem was that after he took the test the city threw the results out because the only people who passed the test were white and they were afraid that they’d actually accidentally constructed a discriminatory exam that would get them sued.

    What Sotomayor ruled was that the city was correct and that there was the potential for them to get sued over this so it was within their rights to drop the test as a metric for consideration. Ricci was upset because he’d worked hard to pass the test and the city reneged. The facts in the case suck for both sides involved in it. But it’s the facts that suck, not the narrow ruling on whether the city was able to throw the test out or not that the court made its ruling on.

  17. 17
    Mark S. says:

    @Mnemosyne:

    He did pass the test, and his dyslexia is not relevant to the case:

    When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci’s specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

    I think Ricci got a raw deal, but I also think the 2nd Circuit applied the law correctly.

  18. 18
    Notorious P.A.T. says:

    the actual substance of law in the matter was fairly straightforward and clear, but it yielded a result that many conservatives found unacceptable, and they therefore sought all manner of political remedies to undo the reasonable decisions of the courts

    It’s almost as if they are looking for judges to be more active than the law, and give them what they want whether it’s legal or not.

  19. 19
    cleek says:

    What I almost never see mentioned is that, in my understanding, the 3-judge panel voted unanimously on the Ricci case. Why is it Sotomayor’s fault?

    because she’s the one they need to lie about.

  20. 20
    binzinerator says:

    the actual substance of law in the matter was fairly straightforward and clear, but it yielded a result that many conservatives found unacceptable

    Many conservatives always find laws they disagree with to be unacceptable. This why we have torture, massive domestic spying, obstruction of justice, missing tapes and millions of missing emails, and all sorts of information, including the log who met with Cheney to form the nation’s energy policy right up to the testimony of private citizens on corruption in the DOJ, is declared classified due to national security or presidential privilege.

    This is why, people of Minnesota, you still don’t have your lawfully elected senator sitting in the senate.

  21. 21
    KG says:

    I should point out, for the non-lawyers in the room, the liberal/conservative dichotomy doesn’t really work well in the legal realm. There are actual quite a few different theories of jurisprudence out there. Originalism, original intent (related but different), and the living constitution movement are the three big ones. Then there are issues of legislative intent and referring to collateral sources (like the legislative history of a bill) or constraining yourself to the four corners of the document. But I’d also point out that for the most part, lawyers tend to be conservative in temperament (though I’ve run across my fair share of assholes). This is especially so for judges because they have to actually explain the reason for their decisions, and unlike the political branches, they are actually bound by those decisions and reasons. So the law (judge made law – and yes, Virgina, there is judge made law) moves slowly and deliberately, and usually grows by reasoned analogy and comparisons. There are, of course, trade offs, like that conservative temperament often leading to risk aversion and making lawyers terrible businesspeople.

    I kind of like it like that, but then I’m biased, being a lawyer and all.

  22. 22
    Notorious P.A.T. says:

    Wait a minute–was Mr Ricci white or black?

  23. 23
    used to be disgusted says:

    Agree with Mark S. Everything I’ve read indicates that this was a correct interpretation of Title VII.

    But I have to say, if that’s true, I think Title VII needs to be adjusted. Because I also agree that Ricci got a raw deal.

    I’m not against affirmative action — as a remedy for racism with a distinctly limited time frame.

    But as a long-term policy, I’m not comfortable with laws that require every public institution to define a “racially balanced” result and then reverse-engineer promotion procedures so that they produce such a result. At some point or other, we need to be willing to accept that impartial procedures may occasionally produce a racially imbalanced result. If we don’t like that result, we need to work on improving urban public schools, etc.

  24. 24
    AhabTRuler says:

    @used to be disgusted: IIRC, the remedy (i.e., throwing out the test) was to be applied only to that year’s test, with the idea of fixing the test for the following years.

  25. 25
    Notorious P.A.T. says:

    If we don’t like that result, we need to work on improving urban public schools, etc.

    That’s what I would like, too, but if you think Republicans whine about affirmative action, just listen to them when someone suggests equalizing school funding across districts.

  26. 26
    r€nato says:

    I’ve always fervently believed that conservative “activist judges” rhetoric boiled down to nothing more than, “an activist judge is one who doesn’t rule the way I want him or her to”, just like “rule of law” only applies to Democratic presidents.

    Schiavo, Iran-Contra, Bush v. Gore, Clinton impeachment… just to cite four examples off the top of my head.

    Not even getting into the numerous instances of disregarding the Constitution and the laws of the land during the Bush/Cheney regime.

  27. 27
    Anne Laurie says:

    The more I read about Ricci, the more it sounds like the guy could have had a good case under the ADA to get accommodations for his dyslexia, and probably passed the test. But, no, he had to go the racial route and insist that he’d been discriminated against because of his skin and not because of his disability. What a wanker.

    Uh, no — not in today’s America. “Real men” , manly firefighter men, don’t complain about their “handicaps”! Especially “imaginary” so-called handicaps like dyslexia, which were invented by pansy-arse social workers to explain why some people are just stupid and inadequate! They suck it up and get on with their manly jobs!

    Seriously… this doesn’t logically affect either the original court case or Sotomayor’s “judicial activism” decision, but as someone who grew up dyslexic in a community full of blue-collar city workers (police, firefighters, sanitation workers, dockworkers) I have the sense that Mr. Ricci was absolutely fvcking outraged about his test results being discarded because he’d worked SO hard, and even confessed to a shameful & embarrassing “disability”, only to have his success discarded as… immaterial.

    It felt pretty effin’ “material” to him.

    Once again, it’s a case of the People With Power getting The Rest of Us to fight over scraps, brawling over whether ‘disability’ should outrank ‘racism’ should outrank ‘class’ should outrank ‘sexism’ in competing for the 20% of the pie that the PWP are serenely hoarding 80% of. Dismissing other peoples’ handicaps as “less significant” when we should be discussing, let’s say, why a dyslexic substance-abuser like George W. Bush gets so many opportunities to fvck up and *still* never face any consequences.

  28. 28
    Napoleon says:

    @KG:

    So the law (judge made law – and yes, Virgina, there is judge made law) moves slowly and deliberately, and usually grows by reasoned analogy and comparisons.

    I was thinking about this last night that non-lawyers may not really understand what that means. Judge made law is similar to coloring book art in that to the extent they make law it really is filling in the undefined or conflicting areas that the legislators leave, but they are constrained by what legislators do.

  29. 29
    Mr Furious says:

    Larison’s breakdown on that case is the best I’ve seen. After reading that post and a few others at Eunomia, I walked away from my computer disgusted that Larison didn’t get the Times job. Fucking morons.

  30. 30
    Michael says:

    I said this earlier, and I’ll say it again:

    I’d like to see the test they used in Ricci in order to judge the relationship between the test and the job function of the promotion.

    I’d also love to see the likely performance difference between the firefighters in each passing decile in order to determine if the test actually measures anything.

    These civil service tests all too frequently become a litigation pissing match between average guys, both white and minority. This is the phenomenon where the white guy who scores an 86 feels like he is eminently more qualified for (and entitled to) a promotion based on the fact that he scored an 86 and the black guy scored an 82 on a multiple choice, general knowledge test.

    If anybody remembers, Bakke was not a stellar student.

  31. 31
    someguy says:

    The more I read about Ricci, the more it sounds like the guy could have had a good case under the ADA to get accommodations for his dyslexia,

    No, he couldn’t have filed an ADA claim. The fact that he passed the test is really strong evidence, under standards dictated by the current Supreme Court, that he isn’t a “person with a disability.”

    Disparate impact theory holds that if your workplace does not reflect the racial balance of society, you need to consider whether your hiring and selection standards are racist. Because black firemen scored poorly on the standardized test, it’s very good evidence that the test is racist, if not overtly, then at least in effect. New Haven should be required to demonstrate why each and every question on that test is necessary knowledge to the performance of the job if they are going to deny promotion to black firefighters – and nothing against Mr. Ricci but he shouldn’t be allowed to unfairly benefit by the overt or implicit racism in New Haven’s test. If all you see is white people in your workplace, then there’s a good chance your employer is not hiring fairly either.

  32. 32
    les says:

    I was thinking about this last night that non-lawyers may not really understand what that means. Judge made law is similar to coloring book art in that to the extent they make law it really is filling in the undefined or conflicting areas that the legislators leave, but they are constrained by what legislators do.

    Not completely; unlike a “Code system”, where every action is to be determined within the code, the U.S. is a common law system. If there’s a statute, cool; if no statute apples to the facts, courts look back to prior case rulings, all the way to British law at the time of the Magna Carta. Busy little beavers that modern legislators are, there are fewer corners of our lives free of statutory influence; but they are there.

  33. 33
    Mnemosyne says:

    @NonyNony:

    You need to read more about the Ricci case, then, because the problem wasn’t that he didn’t pass the test – he DID pass the test. The problem was that after he took the test the city threw the results out because the only people who passed the test were white and they were afraid that they’d actually accidentally constructed a discriminatory exam that would get them sued.

    I think I was unclear — I was wondering why Ricci didn’t re-take the test when it was administered the second time and ask for accommodations for his dyslexia. Or did he re-take it and not pass and that was why he sued? That whole part is very confusing to me.

  34. 34
    2th&nayle says:

    @KG: That is a very succinct explanation/insight into the legal versus political realm of law. Thx!

  35. 35
    gex says:

    @Michael: Reminds me of the case (don’t know name or state) where females sued over the firefighter test. They had used brute strength stuff which kept women out. After the suit, the test were all firefighter skill stuff (carrying equipment up the latter, carrying a person, etc.) Suddenly, women could pass the test.

    Funny, huh?

  36. 36
    Michael says:

    Reminds me of the case (don’t know name or state) where females sued over the firefighter test. They had used brute strength stuff which kept women out. After the suit, the test were all firefighter skill stuff (carrying equipment up the latter, carrying a person, etc.) Suddenly, women could pass the test.

    Amazing, isn’t it?

  37. 37
    mvr says:

    @JasonF:

    Or to put what I think is your point another way, it isn’t even obvious that there was anything wrong with the law in Ricci either. You don’t want cities to use tests that effect members of racial groups differentially if those tests have nothing to do with what it takes to do the job well. And the law agrees. What’s the problem?

  38. 38
    Stephen1947 says:

    I just want to add to the chorus of those singing Larison’s praises. I started reading him based on links from this blog, and soon enough bookmarked him. So I had actually read these two posts before you called attention to them. I also frequently disagree with him, but I’m surprised at how often I don’t. And I’m on of the original DFHs…

  39. 39
    Dero says:

    I think you can be of very different policy persuasions yet still have a conservative mindset (skepticism of concentrated power, respect for the status quo, awareness of the possibility of unintended consequences, etc.). In that sense it’s easy to respect Larison’s opinions because you may be a liberal or libertarian or whatever that finds yourself using the same thought process and basic rules.

    But even outside of that, his opinions are well reasoned which makes them easy for anyone to swallow, even if you disagree.

  40. 40
    Dave says:

    The one who should really be vilified in this case is Ude, not any of the judges. If he had let the test be certified, it is highly doubtful a court would have overturned the decision. The plaintiff easily proved the test had sufficient professional merit. The case never rested on whether the test was fair.

    For political reasons, Ude overreacted to the test results under the pretext of discrimination. His clear agenda of promoting racial quotas regardless of performance is ethically troublesome in my opinion. Nonetheless, what he did was not illegal since it is a fact that racial disparity was a result of the test, invoking potential claims under Title VII.

  41. 41

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