How do you solve a problem like Maria?

Larison solves the problem of why Maria Sotomayor’s ruling in the Ricci case was not the Worst Decision Evah (his entire post on Sotomayor is excellent):

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.

Perhaps I have missed something, but the injustice done to Ricci seems in no small part to be a product of the law as it exists. However, under current law, even granting that the city of New Haven seems to have bungled the handling of the promotion test for its firefighters, it does not necessarily follow that throwing out the test results from the apparently flawed test was a violation of anyone’s legal rights. Presumably had Sotomayor found for the plaintiff, we would now be hearing about how all that infamous “empathy” caused her to side with the dyslexic man against a municipality–oh, the judicial activism!–and to open the latter up to long and costly litigation (which would, of course, demonstrate her abiding love of greedy trial lawyers, her desire to enrich fellow minorities and her hatred of patriotic firefighters, as so many people would be only too happy to tell us).

It’s nice to see an actual analysis of the decision, instead of the Villagers clucking “affirmative action bad, extreme decision, Ricci reminds me of my cranky uncle”, etc.

I think Larison would have been a good pick for the NYT opinion gig that Douthat got. In a few days, we’ll see what Douthat comes up with on this topic.

Update. I see John already wrote about this a few days ago, which I thought I dimly remembered, but couldn’t find “Larison” in a search (I should have tried “Eunomia” as well).






23 replies
  1. 1
    bago says:

    Douthat will probably remark about how judging all of these burly firefighters makes him slightly uncomfortable. They do wear their rubbers after all.

  2. 2
    apistat says:

    Sticking with the theme of actual analysis, someone at SCOTUSblog took a look at all 96 decisions she’s made on race-related cases on the Second Circuit. Turns out that ultra-radical racist bigot agreed that discrimination took place 10 times (9 of which were unanimous decisions by the panel), and dissented in just two of the 75 cases where it was decided that no discrimination took place.

    Oh, and bonus points for actually dissenting from the majority in a case where they decided that the NYPD had the right to fire a white guy who was sending out racist mailers.

    It would be like putting Malcolm X on the bench!

  3. 3
    Johnny Pez says:

    I found Larison’s post on the Ricci decision to be just as fascinating when John linked to it a few days back.

    /smartass

  4. 4
    Warren Terra says:

    I think Larison would have been a good pick for the NYT opinion gig that Douthat got

    Given the “quality” of Douthat’s recent attempts — and that (my understanding is) Douthat is still in a web-only trial period — Larison could perhaps still be a good pick for the NYT opinion gig that Douthat got.

    Although Larison, while otherwise estimable and in all ways superior to Douthat, remains an uncompromising nutcase whenever issues related to religion crop up.

  5. 5
    asiangrrlMN says:

    Douthat is a spectacular jackass. As for Larison, I do not know enough about him to judge. However, I can’t think of any conservative pundit I would actually read on a regular basis.

  6. 6
    DougJ says:

    Although Larison, while otherwise estimable and in all ways superior to Douthat, remains an uncompromising nutcase whenever issues related to religion crop up.

    Which is exactly what would make him a suitable hire for the position. It’s a feature, not a bug. They need one Jesus freak. And Larison is clearly superior to Douthat.

  7. 7
    scarshapedstar says:

    Was this post ghostwritten by Mike Huckabee or is the “Maria” a subtle joke?

  8. 8
    Ninerdave says:

    Hilzoy nailed this a few days ago:

    The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do. And anyone who thinks that this decision (made by this court) is problematic should not go on to criticize Judge Sotomayor for judicial activism, since no one who genuinely thought there was a problem with substituting one’s own views about what the law ought to be for what it actually says would object to this decision.

    Which is to say: STRICT CONSTITUTIONALIST!!! DON’T LEGISLATE FROM THE BENCH!!!

    etc.

    etc.

    etc.

  9. 9
    Johnny Pez says:

    @scarshapedstar:

    Was this post ghostwritten by Mike Huckabee or is the “Maria” a subtle joke?

    Eez juk, Natasha, leetl juk.

  10. 10
    Fencedude says:

    @DougJ:

    Larison’s not your run of the mill Jesus Freak though, he’s OLDSCHOOL about it.

    Eunomia was…interesting around Easter I remember.

  11. 11
    mad the swine says:

    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.

    Any judge who upholds an unConstitutional law is a judicial activist.

  12. 12
    John Cole says:

    I think Larison is just devoutly religious, like a lot of people. What separates him from people I would consider “jesus freaks” is that he actually tries to live up to the word. I actually find it kind of offensive to label him a “jesus freak,” when that really means something completely different. I would similarly find it offensive if someone called a Cardinal or a Bishop or other men and women of the cloth “jesus freaks.”

    There is a difference, I think.

  13. 13
    MikeJ says:

    Douthat is a spectacular jackass.

    But he generates pageviews, which is the only metric that matters to the NYT.

  14. 14
    Rick Taylor says:

    They hypocrisy here is blatant. Republicans scream and rend their garments about activist judges who make law, and declare judges should blindly apply the law as written without being biased by their personal feelings or preferences. Then they take a case where Sotomayor did just that, applying the law narrowly (as she has a reputation for doing) they use it to attack her. They don’t really care about judges making law, they just want them to rule the way they want them to rule.

  15. 15
    Silver says:

    I would similarly find it offensive if someone called a Cardinal or a Bishop or other men and women of the cloth “jesus freaks.”

    Me too. The proper term for them is “child molestation advocates/tax exempt charlatans.”

  16. 16
    Warren Terra says:

    I wasn’t referring to, and certainly not impugning, the sincerity of Larison’s religious belief. I was simply saying that while on many other subjects Larison seems to think things through and be able to debate them, whenever his religion is even tangentially involved Larison writes these long, unreadable, dogmatic and intolerant screeds that can seem positively unhinged. I’m a devout Atheist, which limits my personal experience, but I’ve certainly encountered believers who can discuss religion and issues related to it without seeming like total loons.

  17. 17
    Ming says:

    I think Larison would have been a good pick for the NYT opinion gig that Douthat got.

    Larison’s not qualified — he is incapable of writing at an 8th grade reading level.

    And I’m late to the party here, I know, but I wish the WH had just explained Sotomayor’s “wise latina” remarks, rather than essentially dismissing the concerns they raised. First, they *do* sound bad, and that ought to be acknowledged. And second, if you read her remarks in the context of the speech, it’s clear Sotomayor was saying that in judging matters of discrimination, she would hope that someone who had experience with discrimination would render a better verdict than someone without that experience. This seems wholly uncontroversial to me, and this explanation could, by itself, lay the issue to rest with the general public, I think.

    But for the law geeks, I think there’s a nice, more sophisticated point Sotomayor made here. She’s careful not to claim that someone with experience with X would >automaticallycan< make good judgments in that domain, it’s understandable that they won’t always — they simply didn’t know enough and didn’t realize they needed to know more. Whereas a judge who knows enough about a domain to take important but perhaps subtle facets of that domain into account in their decision can and should be expected to do so — in matters of discrimination, Sotomayor “would hope” that a wise latina judge with that life experience would render better verdicts than a white male judge without that experience.

  18. 18
    Mike Furlan says:

    . . .whenever his religion is even tangentially involved Larison writes these long, unreadable, dogmatic and intolerant screeds that can seem positively unhinged.

    That in my mind is less of a problem than his proud membership in what some people consider a white hate group, the League of the South.

    For all of his obvious talent, this issue will ultimately limit his appeal.

    http://larison.org/2008/01/16/my-noxious-views/
    http://www.splcenter.org/intel.....jsp?aid=79
    http://www.splcenter.org/intel.....sp?aid=250
    http://www.onlineathens.com/st.....0913.shtml

  19. 19
    Mike Furlan says:

    Although Larison, while otherwise estimable and in all ways superior to Douthat, remains an uncompromising nutcase whenever issues related to religion crop up.

    A more serious issue is his membership in what some call a hate group, the League of the South.

    http://larison.org/2008/01/16/my-noxious-views/
    http://www.splcenter.org/intel.....sp?aid=250

  20. 20
    Qbert says:

    Any judge who upholds an unConstitutional law is a judicial activist.

    There was no law at issue here; there was a policy of throwing out employment tests if the results showed an adverse impact on minority job applicants and the test criteria were arguably not directly relevant to the job. Imagine a fireman test that included the ability to sink a jumper from 30 feet out, and you get an idea of what lies behind the “disparate impact” line of discrimination cases. If you think that the jumper test should be invalidated when applied to firemen (though not basketball players), you can’t call a policy of excluding tests that produce the skewed results in Ricci unconstitutional. To do so would be to turn the concept of equal protection on its head.

    I should add that there’s a habit among nonlawyers of all stripes to constitutionalize every issue that exercises them. The Constitution is not a straitjacket; it permits, and is supposed to permit, wide latitude for legislators and courts to set policy. This means that just because law A is constitutional, does not mean that law not-A is unconstitutional.

  21. 21
    mvr says:

    FWIW, I think it important to emphasize that there may well be no problem with the law either. One reading of the facts is that there was a problem with the test – it treated members of some groups differently than others but did not accurately test for work-related skills – so the city got rid of it, since the law forbids that sort of thing.

    So while I agree with the point that the judges were just following the law, I think I disagree with the claim that there was a problem with the law.

    (FWIW, I haven’t done detailed research on the test itself, but am going with the characterization of the test in what I’ve read and also to some extent in the quotations above themselves.)

  22. 22
    feebog says:

    The Ricci case is a pretty good example of just how hard it is to put together a civil service exam that fairly and objectively measures not only experience but apptitude and command ability. I am a hearing officer for a county civil service commission. This is a large county with a lot of employees. I recently heard a case where an employee (law enforcement) had been passed over for promotion. I heard several hours of testimony from the Phd that put together the exam. Very impressive. Unfortunetly for them, they included in their evidence a technical report that revealed that the part of the exam in question was totally and completely FUBAR. Hopefully the Commission will take my recommendation and promote the officer.

  23. 23
    Cal Gal says:

    but but but but but

    he was a FIREFIGHTER

    and and and and

    DYSLEXIC

    9/11 9/11 9/11 9/11

    BTW, who would read the memos to him in the firehouse? Because officers do a LOT of paperwork.

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