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Go Home Why Sotomayor Is Such A Good Pick

THE PLANK MAY 26, 2009

Why Sotomayor Is Such A Good Pick

Erwin Chemerinsky is the dean and a distinguished professor of law at the University of California, Irvine, School of Law

President Obama's choice of Judge Sonia Sotomayor is brilliant politically, but even more importantly, terrific for the Supreme Court and the future of constitutional law. Everything that is known about her indicates that she will be an easy confirmation and an outstanding justice.

From a political perspective, a Supreme Court nomination can be treacherous, as presidents need to please their political base without risking undue political capital over a confirmation fight. Sotomayor's record shows her to be a moderate liberal who is unlikely to provide fodder for her opponents. Her having been first nominated to the federal bench by a Republican president, George H.W. Bush, will make it harder for Republicans to paint her as an ideologue. Moreover, it is highly unlikely that many Republicans are going to want to strongly oppose the first Latina selected for the high court. The political reality is that with 59 (and likely soon to be 60) Democratic senators, Sotomayor will surely be confirmed. It doesn't make political sense for Republicans to fight a losing battle that risks alienating a key and growing political constituency, Hispanic voters.

Sotomayor brings to the bench essential diversity. Every justice's rulings are a product of his or her life experiences. As a woman, a Latina, a person who has faced a life-long serious illness (diabetes), and a person who grew up in modest circumstances, Sotomayor brings experiences that are unrepresented or largely absent from the current court. These certainly will influence her rulings and they also may help in the most important task for a Democratic appointee on the current court: persuading Justice Anthony Kennedy, the key swing justice on almost every closely divided issue. Sotomayor's background, as well as her intellect and experience, make her ideally suited for this role.

President Obama repeatedly has said that he wants a justice who will show empathy. This means a justice who will look at law as it affects people's lives and not just as an abstract set of rules. Sotomayor is likely to be this justice. Several decades ago, Justice Thurgood Marshall in a dissenting opinion admonished his colleagues that it is one thing for them to make judgments about the law, but another to make judgments about how poor people live. The court needs people of color and people from disadvantaged backgrounds to offer the chance for empathy that only such experiences can provide.

But most of all, Sotomayor is an excellent choice because she is an outstanding judge. Her opinions are clearly written and invariably well-reasoned. My former students who have clerked for her rave about her as a judge and as a person. She has enormous experience as a lawyer and as a judge, both in the federal district court and the federal court of appeals. The bottom line is that the court will now have its third woman justice in history, its first Latina, and an individual who likely will be an excellent justice for decades to come.

-- Erwin Chemerinsky

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77 comments

"It doesn't make political sense for Republicans to fight a losing battle that risks alienating a key and growing political constituency, Hispanic voters."

Sweetheart, that ship already set out from the harbor.  

- dylanposer

May 26, 2009 at 1:17pm

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Actually, the best thing about the Sotomayor pick is that it seems to have lured Liberal Reformer back to TNR.  About time, I say.  In his absence, this place was just too ... comprehensible.

- ratnerstar

May 26, 2009 at 1:24pm

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The good professor can wax rhapsodic over the nominee's life experiences, empathy and her infusion of diversity, but many Americans still equate affirmative action with the foisting of mediocrity and even inferiority upon our institutions. Even if Judge Sotomayor embodies every virtue her supporters claim she stands for, how this stereotype is overcome remains to be seen. Steamrolling her nomination through the Senate will not do it.

- nbarry

May 26, 2009 at 1:48pm

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Wait - how exactly does diabetes fit into all of this?  My dad is diabetic, and the only thing that it's influenced is his diet.  I don't think his character or judgment have been enhanced by insulin injections over the years.

- bcbaird

May 26, 2009 at 1:57pm

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"...but many Americans still equate affirmative action with the foisting of mediocrity and even inferiority upon our institutions."

not that many.

- mmathog

May 26, 2009 at 2:06pm

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bc- Well, the diabetes explains why she wasn't picked to be the next leader of North Korea.

- ratnerstar

May 26, 2009 at 2:06pm

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talk to me about sam alito's superiority nbarry.

- mmathog

May 26, 2009 at 2:07pm

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Dunno nbarry - I don't equate AA with that, my experience has been the opposite.  As in, we can't dig up ONE qualified person of color to teach at this entire school? That's just not credible.  Systemic blocks are changing but sadly still real sometimes.  My career has been greatly enriched by the fruits of AA.

Yes, creating diversity in an institutional setting is clumsy, but ultimately valuable, even required for intellectual fullness.  

But everyone views this differently and both sides have honorable points.  I testified against two different women who had brought sexual harrassment charges against two separate bosses of mine over he years - they were both trying to skate on the backs of people who had really been discriminated against.  I wouldn't have it and nailed them both.  I'm no gender zero summer, quite the opposite. But that doesn't mean I think sexism isn't real, I do.  

I'm still taken with Sotomayor graduating first in her law school class from Princeton. Let's be extreme and say the admissions commitee there was stupid with lefty identity warriors.  That won't get you to number one, only you can do that.  I think Americans will see that first.

(That is the problem with AA - that taint. If someone with her background was a white man, no one would wonder.  It would drive me mad if I was her, she's enormously accomplished and qualified.  Identity qualifiers are both helpful and risky business. The focus on her being 'only" Puerto Rican is just embarrassing).  

- Wandreycer1

May 26, 2009 at 2:24pm

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I think the point about Sotomayor being a diabetic is that when the inevitable health care bill is up for judicial review she'll have a worldview of someone who has had consistent contact with medical issues. That can only be a good thing for jurisprudence in that area.

- shaw-man

May 26, 2009 at 2:27pm

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ratner--that, and being female...

But why does anybody think this is going to be an "easy" nomination to carry?  You're talking about a GOP in full kamikaze mode--you really don't think they'll blow up whatever they have to blow up just to get a "score" against Obama?

- cspencef

May 26, 2009 at 2:37pm

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Wand: years ago I was on the External Appointments Committee of my university - a large, diverse institution in the heart of a large, diverse and dynamic city.  We were looking at the list nominees presented by a scientific body - I noticed that there was not a single woman on the list.  I looked up and around.  The Prez smiled and said, "Looks good - so, any comments?"  I looked around.  The Vice-Prez (a woman) and the Chair of the Board of Trustees (also a woman - an eminent politician as well) looked at me (a young puppy then) ... silence ...

Prez: "So, should we approve?" ...

Me, with considerable hesitation (I am not a scientist, not a woman and only 22): "Just a question, out of curiosity.  Are there no qualified women scientists within the geographic region and population group (about 5 million, give or take)?" ... silence ...

Eminent Scientist Who Proposed Nominees, "Well, uh, I mean, euh, mmm, I'd say, well, these are the names, well, these are the people we have been working with and -" ...

Prez: "You did not search outside the existing candidates?" ...

Eminent Scientist, "Well, mmmhhh, we looked at eminent persons we have, I mean, we looked around and, yes, well ... "

Chair, "Are there no qualified women to serve on this Board?"

Eminent Scientist, "I'm sure, I'm sure there are."

Me: "Would it be possible for you to verify?  If there are not, it's OK, but we should, at least, look."

Two weeks later, the list came back with 1/3 of it women researchers of the highest calibre - there were even more women qualified scientists but they were too busy to take this on.

I can assure nbarry and any other idiot who talks about "mediocrity and inferiority" that the Old Boys' Network has promoted and protected more mediocrity and inferiority than generations of AA officials.  Can baby spell "heckuva job, Brownie"?  I didn't think so.

- icarusr

May 26, 2009 at 2:48pm

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It's hard to be an effective kamikaze when you have a beat up old Ford Pinto with an oil leak rather than a Tojo fighter plane.  

- ratnerstar

May 26, 2009 at 3:01pm

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Brother Ick, you're on fire these days.  Killer story.

You mentioned somewhere else that you were asked to run for something once, that would be great,

- Wandreycer1

May 26, 2009 at 3:35pm

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Exactly, icarusr. While it's true that AA has in fact foisted a few unqualified mediocrities on their professions, the practices and networks of discrimination that AA was meant to counter have inflicted much more extensive and egregious incompetence and mediocrity on every sector of society over the years. And the "taint" doesn't apply only to the potential beneficiaries of AA. It applies to everyone who "competes" on a playing field tilted in favor of his own white ass.

Was Walter Johnson the best pitcher of all time? We'll never know, because that cracker never had to face black (or for the most part, Latino) batters in a competitive game. And while I grant that Big Train would have been a great pitcher in an integrated league, in reality he played alongside mediocrities like shortstop Roger Peckinpaugh and thirdbaseman Ossie Bluege, and that was on the championship 1924 squad. Hell, the Senators that year had to hire a washed-up 34-year-old pitcher with no big league experience, Oyster Joe Martina, to fill out the rotation. That's three guys I can name off the top of my head who had jobs they weren't qualified for entirely because black players weren't allowed to compete. So even if an AA program had put three unqualified players on the Senators roster, the team wouldn't actually have been any worse off, and if black players had been allowed to compete on the same terms as whites, it's almost impossible for an AA program not to have produced three superior candidates to fill the positions held by incompetent white guys.

- rhubarbs

May 26, 2009 at 4:55pm

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ratner--remember, Pintos had the rep for being pretty darn flammable.  

- cspencef

May 26, 2009 at 5:26pm

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Well, the one thing is for certain is that she has no empathy for white and Hispanic fire fighters who do well on promotion exams.  

Even when the exam includes materials like the following:

When coupling hoses together, ___ 50-feet hoses and ___ 75-feet hoses will result in a length of 575 feet.

a. 5, 4

b. 4, 4

c. 5, 5

d. 4, 5

www.ocfa.org/.../sampexam.pdf

- gurdjieff66

May 26, 2009 at 8:24pm

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Gurd

I am not sure to respond other than to say, BROWNIE HEADED THE EMERGENCY AGENCY OF THE ENTIRE UNITED STATES BECAUSE HE WAS THE ROOMMATE OF A FRIEND OF GEORGE BUSH.  And the examples of White preferences because of college circle-jerk friendships are legion.  You can talk till you are blue in the face about "merit" and I will keep throwing back "Heckuva job Brownie" at you.  When you break this noxious favoritism of honkey, then I will concede any argument you want on AA.  

Thanks Wand.  The sad thing is that I am actually strongly opposed to quota-based AA (up here it's called Employment Equity), as I think that the essence of the problem is economic rather than ethnic - except for the obvious cases of discrimination.  But then, every time I say this, I go to a meeting, sit at a lunch, sit through a telephone conference call or interview someone who says something incredibly stupid and who proves that old attitudes dies hard and sometimes you really have to push things through.  And I also come across people - remnants of the Network - who moved up because of connections rather than merit, and whose mess I have to clean up ... and let me tell you, those are the times I want to ram AA down the throat of my organization - no incompetent brown person I know can be as incompetent as some of these oiks ...

As for running for office - a couple of mentors are very successful politicians, and some friends are well-off and well-connected (so fundraising would not be an issue), and so we have talked about my running.  I'm at the right age and level of experience, right background, etc. ... and it all comes back to whether I am prepared to have my private life splashed on the front pages of local newspapers (I know it will be made into an issue) ... and, frankly, political success is not that attractive a prize.

- icarusr

May 26, 2009 at 9:49pm

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icarusr,

We will account for your good judgment and keen intellect.  Just tell us where to mail the petitions.  

d

- dylanposer

May 27, 2009 at 1:59am

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Gurd:

Because the Ricci v. New Haven case (the firefigher case) is certain to figure prominently in the discussion of Judge Sotomayor's nomination, I am going to try to set the record straight about it whenever I see it raised in the TNR blogs.  I apologize to those of you who have already heard this.

The Ricci case involves the interpretation of federal employment-discrimination law (commonly known as Title VII).  Under Title VII, the use of a test or other employment practice that has a disparate racial impact (as the New Haven test did) is illegal, unless it can be shown that the test is job-related and that there is no alternative test with a less disparate impact.  The City of New Haven purported to discard the test because it feared that using the test would violate Title VII.  One of the questions before the trial court was whether an employer could be sued for discarding a test in order to avoid violating Title VII.  The trial court said no, and dismissed the case.  

Now, one can advocate the repeal of Title VII's disparate-impact provision, or argue that compliance with that provision should not have been a complete defense and that Ricci (the lead plaintiff for the complaining firefighters) should have had the opportunity to prove that something other than a desire to comply with Title VII was afoot.  But the trial court's decision was not an unreasonable interpretation of the law.  Indeed, it arguably would be unreasonable to conclude that Congress intended that employers could be sued for attempting to comply with federal law.

Ricci appealed the trial court's decision to the Second Circuit Court of Appeals.  Judge Sotomayor and two other judges on the Second Circuit agreed with the trial court and affirmed the trial court's dismissal of the case.  The three-judge panel (which included Judge Sotomayor) did not write a separate opinion, but adopted the trial court's 48-page opinion as its own.  That is not an uncommon practice among federal courts of appeals (though Second Circuit Judge Jose Cabranes later argued that the panel should have produced its own opinion in light of the importance of the issues raised in the case).

Ricci then petitioned thi have the appeal re-heard by the entire bank of 13 Second Circuit judges (called a petition for rehearing en banc).  The bank voted 7 to 6 not to re-hear the appeal, thus leaving the three-judge panel's decision in place.  Judge Cabranes was among the dissenters and wrote a dissenting opinion.  Federal appellate judges regularly write dissenting opinions.  While it means they disagree with the majority of the judges deciding a particular matter, it does not necessarily mean they believe the judges in the majority have acted incompetently or in bad faith.  Judge Cabranes' dissent was vigorous, and it shows that he strongly disagreed with the majority's decision, but I think it requires a biased perspective to infer from his dissent a belief that the 7 judges in the majority, or Judge Sotomayor individually, had acted nefariously.  

Ricci then petitioned the Supreme Court to hear the case (a petition for certiorari).  The Court granted certiorari, accepted briefing from the parties and numerous "friends of the court" or "amici" (non-parties who can show they have an interest in the outcome of the litigation or have something significant to add), and heard oral argument last month.  Interestingly, Justice Souter, the Justice whom Judge Sotomayor has been nominated to replace, commented that it is inconceivable that Congress intended that an employer's attempt to comply with Title VII's disparate-impact provision should give rise to a claim against the employer for intentional discrimination.

The Court's decision is pending.  I predict that the Court will hold that compliance with Title VII's disparate-impact provision is presumptively a defense to a claim of intentional discrimination, but will send the case back to the trial court to let Ricci try to overcome that defense by proving that compliance with Title VII was not the City's real motivation, but that it was motivated by a desire to discriminate in favor of black and hispanic firefighters.

Now let's sit back and watch the commentators distort the Ricci case both procedurally and substantively.

- dhurtado

May 27, 2009 at 9:42am

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Note how George Will distorts what happened in the Ricci case in his piece in today's Washington Post, 'Identity Justice."

- dhurtado

May 27, 2009 at 10:40am

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Refer all future questions about Ricci to dh's post above.

- ratnerstar

May 27, 2009 at 10:45am

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To all those who want to do nothing more than grab their penises and yell and scream about white firefighters, for whom 'affirmative action' is a bigger issue than taxes, health care, and even terrorism, I give you this video:

www.youtube.com/watch

- mmathog

May 27, 2009 at 11:08am

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dhurtado --You lay them out the legal lay of the land well.

By the time hearings start, in all likelihood the case will have been decided in Ricci's favor, judging by the tenor of Kennedy's remarks in the oral arguments.  NAACP and the rest of the racial spoils industry would have done well to have floated a lot of money before Ricci to settle, just as they did with that case in Piscataway, NJ in the late nineties.  This is a nightmare case for advocates of AA.  And my impression is that Sotomayors initiail refusal to deal with the constitutional issues raised in the case was because she realized just how difficult it is to defend what the city of New Haven did.  

"Under Title VII, the use of a test or other employment practice that has a disparate racial impact (as the New Haven test did) is illegal, unless it can be shown that the test is job-related and that there is no alternative test with a less disparate impact."

The test, just one example of which I show above, WAS clearly job-related.  And the City had already done back-flips to try to try to make it easier for blacks to pass.  

Steve Sailer explains the following details of the test:  

"Forty percent of the score was based on oral exam. And the city had attempted to rig the oral results by stacking the panels of out-of-state senior firefighters brought in to judge the oral results by putting two minorities to one white on almost every three man scoring panel.

"However, the city's collective bargaining contract with the fireman's union mandated a 60% weighting for the written test? Why? Well, one reason is that the firemen wanted to be evaluated partly objectively. They didn't trust the politicians to be objective in whom they favored to give them orders in life or death situations, so they wanted at least a majority of the score on the promotional exam to be unbiased by racial prejudice."

Perhaps if the exam was 80 or 100% oral, and conducted in ebonics, enough blacks would have passed to have satisfied the black minister who was the ringleader of all the race hustlking going on that was scaring New Haven city government into fearing a lawsuit.  But why would that have satisfied you?  Go back to the link above to the sample exam I provided.  Do you really think these sort of questions are irrelevant to determining the sort of people that we want to see promoted within a big city fire department?    

"Now, one can advocate the repeal of Title VII's disparate-impact provision..."

I advocate a SLEDGEHAMMER be taken to it.  

- gurdjieff66

May 27, 2009 at 3:05pm

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gurd, you are missing the point entirely and your racist slip at the end shows your motivations.  For Sotomayor to be attacked on Ricci as you want to it would have to be shown that she was either incompetent or biased.  It was a unanimous 3 judge panel that affirmed the dismissal and then 7 of the 13 circuit judges who agreed not to re-hear the appeal.  Clearly she had company. You can argue the merits until you are blue in the face (or is that blackface?), but this was not some outlandish decision made by Sotomayor alone and if it was  a stupid decision she appears to have had a lot of company on the 2nd circuit.

- fribster

May 27, 2009 at 3:58pm

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Gurd, the issue before the Court, and the issue in this discussion, is not whether Title VII's disparate-impact provision should be repealed.  It is currently the law and Judge Sotomayor and the other judges in the Ricci case were bound to follow it.  The issue in this discussion is whether Judge Sotomayor engaged in some form of outrageous conduct in joining the other judges in the matter in concluding that an employer's attempt to comply with federal law should not give rise to liability for intentional discrimination.

First, you have no factual basis for speculating about Judge Sotomayor's motivations with regard to the Ricci case.  It was a "per curiam" decision, meaning that it was attributed jointly to all three judges on the panel.  Thus, it is not even clear that Judge Sotomayor was leading the way with regard to the appellate panel's decision.

As to the test at issue, my understanding is that it is not publicly available in its entirety.  So I think neither you nor I (even if we were experts) are in a position to determine whether it is on the whole job-related.  But even if it was, to avoid liability under Title VII, the City would also have to prove that there is no alternative test with a less disparate impact.  The City said that it feared it could not make that showing.  In any event, even if the City could ultimately have prevailed in a lawsuit contending that the test violated Title VII, the question before the court was whether the City's fear that it would be exposed to a lawsuit under Title VII is a defense to a lawsuit for having discarded the test.  In other words, if Ricci's lawsuit is cognizable under Title VII, then employers are in the position of being damned-if-they do and damned-if-they-don't.  If they use a test with a disparate impact, they can be sued under Title VII.  If they discard a test with a disparate impact, they also can be sued under Title VII (and, if the employer is a government entity, under the Equal Protection Clause).  The trial judge in Ricci, and 7 appellate judges, including Judge Sotomayor, concluded that Tiitle VII does not put employers in that kind of bind.

You may disagree with those 8 judges, and so might the majority of the Supreme Court.  But there is no legitimate argument that Judge Sotomayor did something nefarious.

- dhurtado

May 27, 2009 at 7:05pm

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From bench.nationalreview.com/post

"...In the hope or illusion that America’s voters will soberly consider what is at stake in this presidential election, I continue my exploration of the sort of candidates that a President Obama can be expected to appoint to the Supreme Court....

Highlighting the emphasis on diversity over quality in judicial selection, Justice Scalia has joked that “the next nominee to the Court will be a female Protestant Hispanic”.  Second Circuit judge Sonia Sotomayor fits at least two-thirds of the description.  Plus, she’s acquired a reputation as a very liberal judge.  For these reasons, she’s widely mentioned as a leading Supreme Court candidate in an Obama administration.

A striking opinion this past June by highly regarded Second Circuit judge (and Clinton appointee) José Cabranes exposes some remarkable and disturbing shenanigans by Sotomayor.  Cabranes’s opinion, joined by five of his colleagues (including Chief Judge Jacobs), dissented from his court’s narrow 7-6 denial of en banc rehearing in Ricci v. DeStefano.  (Cabranes’s opinion begins on the ninth page of this Second Circuit order.)

In Ricci, 19 white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.  As Cabranes puts it, “this case presents a straight-forward question:  May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

The district judge, Janet Bond Arterton, issued a 48-page summary-judgment order ruling against the firefighters.  Summarizing Arterton’s opinion, Cabranes clearly finds highly unusual that Arterton could grant summary judgment for the city officials notwithstanding her acknowledgement that the evidence was sufficient to enable a jury to find that the city officials “were motivated by a concern that too many whites and not enough minorities would be promoted.”  Further, Cabranes finds it remarkable that such a “path-breaking opinion” was “nevertheless unpublished.”  

On appeal, Cabranes’s account indicates, the judicial effort to bury the firefighters’ claims got worse.  In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel, consisting of Sotomayor and fellow Clinton appointees Rosemary Pooler and Robert Sack, “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.  Four months later, just three days before Cabranes issued his opinion—and after the panel evidently knew that it had evaded en banc review—“the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.”  As Cabranes sums it up:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.  It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.  Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes and his five colleagues clearly believe that Sotomayor and her panel colleagues acted as they did in order to bury the firefighters’ claims and to prevent en banc and Supreme Court review of them.  Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”  

Quite an indictment—by a fellow Clinton appointee, no less—of Sotomayor’s unwillingness to give a fair shake to parties whose claims she evidently dislikes.  Hardly the mark of a jurist worth serious consideration for the nation’s highest court...

People can read the various opinions, other commentary, note the grant of cert and draw their own conclusions.

I think of course she will confirmed.

- basman

May 27, 2009 at 10:20pm

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fribster,  ok, ok, she's no worse than all the other liberals on the court who love to see public institutions discriminate against successful white people.  

dhurtado your point seems to be that she was just dutifuly following precident.  Certainly  Cabranes thought that this case raised significant problems, and a bunch of his colleagues agreed with him.  She didn't.  I'd like to know why, and I look forward to the hearings to hear why.  

To the extent your explication of how Title VII disparate impact law works is correct, it really serves to illustrate what an abomination it is.  It is all about the attempt to legalize discrimination for the purpose of enforcing equal outcomes, rather than equal opportunity.  The blacks who took the test HAD THE SAME OPPORTUNITY TO DO WELL AS FRANK RICCI.  They didn't get as good a score because THEY DIDN'T KNOW THE GODDAM ANSWERS TO THE QUESTIONS.    

In other words, the emperor, your emperor, has no friggin clothes.  

- gurdjieff66

May 28, 2009 at 1:30am

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This is my synopsis of Cabranes’s dissent in Ricci.

(www.ca2.uscourts.gov/.../06-4996-cv_opn2.pdf)

The appeal raises important novel questions for the Second Circuit and for the country concerning in like contexts the application of the Equal Protection Clause and the Civil Rights Act (“Title V11”) prohibiting discriminatory employment practices. The essential question is: can a municipal employer disregard the results of a qualifying exam, carefully constructed to be racially neutral, because of racially imbalanced results—too many white high scorers. The lower court said “yes” and dismissed the plaintiffs’ claim summarily—without a trial. The appellate panel of three including Sotomayor affirmed this decision with a one paragraph opinion, and then withdrew it 3 days before the dissent was to be published and issued a per curiam  (the whole panel as one body) opinion adopting the lower court opinion, 48 pages, totally.

Such per curiam opinions are adopting the lower court opinion usually occurs with uncontroversial opinions needing no appellate elaboration because the issues are straight forward. The issues in Ricci are complex and unsettled and include;

1. Does the Equal Protection Clause stop an employer from junking test results on the ground of their racial imbalance, hoping a later test will yield more balanced results?

2. is such a practice a racial quota or set aside?

3. Should the onus of proof applicable to claims of pretextual discrimination apply to claims of explicit race based discrimination under Title V11?

4. If a municipal employer claims a race based action was undertaken to comply with Title V11, what showing does it have to make to substantiate its claim?

The panel ducked these issues and it is hoped SCOTUS takes them up.

In 2003 over a hundred applicants took qualifying oral and written tests for fire department promotion. For captain no blacks and only two Hispanics were eligible based on test results, and for lieutenant only whites were eligible.  The Civil service board held hearing as to whether to certify the results. The city said if certified it feared being sued for employment discrimination by unpromoted non-whites. The board did not certify and there were no promotions. The eighteen top scorers al white and one Hispanic sued the city and certain officials and alleged, broadly, violations of the Equal Protection Clause and ttile V11 in junking the tests because of too many white high scorers and not enough non white high scorers.

The lower court  threw out the case summarily with a 48 page opinion. Judge Atherton noted in her opinion that 1. The plaintiffs’ evidence and the defendants’ arguments showed that the city argued for non certification for reasons of the racial result and 2. A jury could infer the defendants were motivated by a concern over too many white candidates and too few non white candidates if certification.  Judge Atherton noted the case was a typical: usually the complainants attack discriminatory test results, here not; usually the employers try to use the test results, here the opposite. In any event, broadly, Atherton held the defendants’ motivation to avoid promotions based on the racially imbalanced results was not as a matter of law intentionally discriminatory and the plaintiffs can’t succeed on the evidence of that specific motivation.

Atherton also held that the defendants had not breached the Equal Protection Clause. Plaintiffs argued that the defendants employed a race based classification system for promotion or had employed facially neutral promotion criteria in a racially discriminatory manner. While it undisputed that the test results were junked out of racial considerations at least in part, Atherton held as a matter of law there was no discrimination because all test results were thrown out and no one was promoted and because there was no evidence the defendants were acting with discriminatory animus towards the plaintiffs as white.

On appeal there were thousands of pages of briefed materials; oral argument exceeded an hour—highly unusual for the second Circuit and two months after such argument the panel as noted issued a one paragraph opinion the substance of which was:

“…

Four months later and as noted three days before publication of the dissent, this opinion was replaced by the per curiam opinion adopting Atherton’s pinion in total making it the law of the Second Circuit. The panel made no clear statement of the plaintiffs’ claims or the issues raided on appeal. The per curiam order was perfunctory in relation to the weighty issues the case raised. Again as noted the core issue is whether a municipal employer can disregard facially neutral test results based solely on the racial imbalance in the high scorers. No second Circuit precedent or SCOTUS precedent is on point.

Equal Protection

Plaintiffs’ argument was that test junking was race based discrimination contrary to the Clause because it was undertaken solely to reduce the high number of white candidates and to increase the non white ones. Defendants argued the decision though race based was necessary to avoid a federal anti discrimination suit, and avoidance in fact came from reducing the number of white candidates.  SCOTUS had held that an employer can’t use racial criteria on a generalized assertion of the classification’s relevance to particular goals; blind deference to legislative pronouncements of racial classification necessity has no place in Equal Protection analysis. Three propositions have evolved to guide strict scrutiny of racial classifications; 1. Skepticism, which means the most searching analysis of the presented justifications; 2. Consistency, which means *all* racial classifications get strictly scrutinized; and 3. Congruence, the consistent Equal Protection analysis under the 5th and 14th Amendments. Therefore, any person of whatever race has the right to demand that any governmental actor under the Constitution justify to the strictest scrutiny any racial classification subjecting the complainant to unequal treatment.  

Whether the lower court adhered to these standards is b not addressed in the panel’s opinion. The lower court ruling rested on the premise that if the test was administered and scored the same for all, the plaintiffs can’t say the test was facially neutral but used discriminatorily. But administration and scoring are different from junking the results because of race, from raced based treatment of the results. Otherwise, neutral scoring and administration would be enough to immunize employers from civil rights claims. There is a real question whether eliding that distinction satisfies strict scrutiny.  And there s a real question whether such junking in the hope of racial balanced results down the road amounts to a quota or a set aside. Those are impermissible without specific evidence of past discrimination and that evidence was not on this record. Atherton also held that test was administered equally because all the results were thrown out and no one was promoted. But if that was done because of the too many white high scorers, then they were prejudiced against in being denied candidacy for promotion based on their race. These are issues raised on appeal but which the panel never reached.

The lower court held there was no intentional discrimination as it has accepted at face value the city’s reasons for junking the results: undermining diversity; lack of role models for minorities; concern with public criticism; fear of Title V11 litigation the city for political reasons did no t want to defend. This finding is arguably anomalous without a trial as intention is a question of fact. And arguably accepting the City’s reasons at face value and without a trial is not a searching examination required by strict scrutiny.

Title V11

Plaintiffs argued the city’s race base action violated Title V11’s prohibition against employment discrimination. A real issue emerges in this atypical case under Title V11 where the arguments of employees and employers are reversed as noted early on as to who has what burden of proof and whether the burden of proof shifts if a prima face case is made out. It is for example established law that if an employee can show an impermissible criterion used in the employment decision—race say—the the employee succeeds unless the employer can show regardless of that criterion he would made the same decision in any event.  Here the plaintiffs argued the impermissible criterion of race motivating the test junking and as noted Atherton said the city admitted its reasons related to racially imbalanced candidates and that a jury could infer the racial motivation of too many white and not enough non white candidates. Atherton’s use of the test for pretextual discrimination, her holding the plaintiffs can’t pass that test as a matter of law and the failure to consider whether the burden should have shifted to the city all again raise serious issues the panel ducked.

Finally, the argument that fears of Title V11 litigation make for non pretextual action that then vitiates race based employment discrimination need much more consideration. Does there need to be an investigation as to likelihood of liability? Does there need to be a reasonable basis for concern over liability? The city could ever pose this fear while it awaits racially balanced test results more to its political liking.

- basman

May 28, 2009 at 1:52am

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Sorry for anyone reading, the part I tried to quote from the panel did no take.

- basman

May 28, 2009 at 9:50am

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Gurd,

You omit the fact that Judge Sotomayor and the other two panelists were in the 7-judge majority.  So there is no basis for singling out Sotomayor as having gone out on some kind of a limb.  It IS curious (though far from unprecedented) that the 3-judge panel decided to adopt the trial court's opinion rather than produce one of their own, but it is ludicrous to accuse them of trying to conceal their decision from the Supreme Court.  The trial court's opinion, though "unpublished," was publicly available on Westlaw and Lexis databases, as well as in the public records.  Moreover, the issuance of a short per curiam opinion by the three-judge panel would not in any way prevent the plaintiff-firefighters from petitioning the Supreme Court for review of the decision.  If anything, it might make it more likely that the Court would take the case.  That is in fact what happened.

A reasonable argument could be made that Title VII's disparate-impact provision (which has been on the books for 40 years) is anachonistic and should be repealed.  But it was not within the province of Judge Sotomayor or any of the other Second Circuit judges to do that.  

I think it is worth commenting about the congressional rationale for Title VII's disparate-impact provision.  It is based on the premise that, where a facially neutral employment practice nevertheless has a statistically signicant disparate impact, a question is raised regarding whether the employment practice is in fact discriminatory.  An analogue would be the poll-tax or the administration of a literacy test before a person is permitted to vote.  Those practices were facially neutral, but were nevertheless discriminatory.  Based on this country's history of discrimination, it was Congress' judgment that once a plaintiff showed that an employment practice had a statistically significant disparate impact, the burden would shift to the employer to show that the challenged practice was not discriminatory, i.e., that a test, for example, is job-related and that there is not a suitable alternative that would have a less discriminatory impact.

Now, one might argue that the landscape has changed over the past 40 years and the burden should be shifted back to the plaintiff to show not only that there is a disparate impact, but that the test is not job-related or that there are alternatives that would have a less disparate impact.  That would be a reasonable argument to consider.  Or, one might argue that the disparate-impact provision should be repealed in its entirety.  But the premise of doing that would have to be that, as long as an employment practice is facially neutral, it is immune from a charge of discrimination.  I do not think that proposition would be defensible.

- dhurtado

May 28, 2009 at 2:32pm

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Basman,

Note that Whalen's piece makes no reference to Title VII's disparate-impact provision, which is at the core of the case.  Neither does Judge Cabranes mention it in his statement of the issue.

- dhurtado

May 28, 2009 at 3:11pm

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Yeah, I noticed that.

But is it  necessarily the core?

Do you have any sense or any way of knowing what issue interested SCOTUS and how it is framed?

I'd guess the core issue will ultimately be the result of which side wins the "framing" fight.

- basman

May 28, 2009 at 3:31pm

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Basman,

With regard to your synopsis of Cabranes' dissent:  Keep in mind that there is no dispute that the promotion test had a statistically significant disparate impact.  Therefore, there was prima facie evidence that using the test's results would have violated Title VII.  So the analysis should start with the question of whether the fact that an employment test presumptively violates Title VII is either an absolute defense, a rebuttable defense, or no defense at all to a claim of intentional disrimination based on the employer's decision not to use the test.  

If it is an absolute defense, then the case is over and the lower courts should be affirmed.  If it is no defense, then the lower courts should be reversed and the matter remanded for trial.  But I see no principled basis for concluding that it is no defense at all.

If it is a rebuttable or provisional defense, then Cabranes' issue number 4 comes into play:  "If a municipal employer claims a race based action was undertaken to comply with Title V11, what showing does it have to make to substantiate its claim?"  Of course, even that question is loaded because whether the action was "race based" is a disputed issue.  According to the City, the action was race-based only in the sense that the City believed the statistical results might violate Title VII.

But under the traditional framework of proof for discrimination cases, before the City would have to make any showing at all, the firefighters would need to first establish a prima facie case of discrimination.  One way for a plaintiff to do that is show that he or she was  treated less favorably than a similarly situated person of another race.  That showing probably is not available here -- no one was promoted based on the test.  

But let's assume that a prima facie case could be established based solely on the City's decision not to use the test.  The burden of production (not the burden of proof) would then shift to the City to articulate a nondiscriminatory reason for declining to use the test results.  That reason would be the City's concern that using the test would violate Title VII, a concern that would be supported by the undisputed fact that the test had a disparate impact.

The burden would then shift back to the plaintiffs to prove that the City's profferred reason was not the real reason AND that the real reason was discriminatory intent.  So the answer to Cabranes' question number 4 is that it is the plaintiffs, not the City, that would be required to make a showing.

The plaintiffs could make that showing by proving that the City's purported concern about violating Titlle VII was not based in fact or was held in bad faith, and by adducing additional, independent evidence that the City was motivated by a discriminatory purpose.  The plaintiffs might be able to do that here by showing that the City possessed solid evidence that the test was job-related AND that there was no suitable alternative test.  Even then, however, that would not necessarily delegitimize the City's concern that it would be exposed to a lawsuit by the minority firefighters.  So the plaintiffs likely would need to present independent evidence of discriminatory purpose.

Assuming that the City's decision not to use the test constitutes a prima facie case, then a reasonable outcome might be for the case to be remanded to the trial court so that the plaintiffs can at least have an opportunity to make the above showing.  But that also assumes that Title VII should not be a complete defense where it is undisputed that an employment test has a statistically significant disparate impact.

Judge Cabranes' other three issues (I am not sure how closely you have tracked them from his opinion), which he elevates above the core issue of the impact of Title VII's disparate-impact provision, are question-begging and show a lack of fidelity to the traditional framework of proof in discrimination cases:

"1. Does the Equal Protection Clause stop an employer from junking test results on the ground of their racial imbalance, hoping a later test will yield more balanced results?"

This question assumes disputed facts, and should be reached only after it is decided that Title VII is not a defense, and only after a trial upon remand shows that the allegations inherent in this question are true.

"2. is such a practice a racial quota or set aside?"

I am not sure that this question is even a question of law.  But in any event, it begs the question of whether Title VII is a defense.

"3. Should the onus of proof applicable to claims of pretextual discrimination apply to claims of explicit race based discrimination under Title V11?"

I'm not sure what Cabranes is getting at here.  If there is direct evidence of discriminatory intent, then the "burden shifting" framework can likely be bypassed.  But the ultimate burden of proof always lies with the plaintiff.  If there is such direct evidence, and the City nevertheless also articulates a concern about violating Title VII, then it may be a "mixed motive" case.  I'm a little fuzzy on that analysis, but I believe the plaintiffs would have to show that "but for" the disciminatory motive, the City would have used the test.  I could be wrong about that.

So there you have it.  The Supreme Court has established standards of proof for claims of intentional discimination that are exceedingly difficult to satisfy.  Something like 90+% of discriminaiton cases fail to survive summary judgment.  Some may argue that the standards for proving intentional discrimination are too rigorous.  But it would be unseemly to relax those standards now simply because the plaintiffs are white.

- dhurtado

May 28, 2009 at 5:39pm

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Basman, when I get the time, I plan to go back and read all of the papers in the case, starting with the trial court's opinion.  But my recollection of the oral argument (which I will reivew again) is that the core issue is whether Title VII is a defense to the claim of intentional discrimination.  But I am willing to review and reconsider.

- dhurtado

May 28, 2009 at 5:46pm

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Dhurtado your analysis is tight. But I am not sure that Title V11 is *necessarily* pivotal in the way you characterize it, though it of necessity figures largely. I want to try to suggest there may be a different way of framing the issues.

I should re-listen to the oral argument before SCOTUS and I will, but I read an account of the issues before SCOTUS—and before actual argument— arising from an analysis of the briefs.  The general broad characterization of the issues includes whether an employer’s action to prevent disparate impact violates Title V11’s prohibition on disparate treatment and whether an employer’s refusal to certify for fear of disparate impact violates the Equal Protection Clause. This way of putting—however broadly—the issues seems astride your proceeding from the inviolability of the disparate impact provisions of Title V11, that being on your take as I read it a kind of unqualified starting point informing the city’s actions and forming its very strong position (as in who can question the reasonableness of the city wanting to avoid presumptive civil rights litigation.

For example the 14th Amendment demand for strict scrutiny of racial classifications informs an issue that seems astride of your analysis of the issues. The plaintiffs’ argument is that the City refused certification solely based on race and that should have been subject to strict scrutiny, which, they say, the affirmed opinion failed to do. I’d think the potential impact of the Equal Protection analysis may disturb the step by step process of your reasoning by raising questions about the import and scope of disparate impact especially in tension with disparate treatment.  For example, another argument is that the affirmed opinion creates an exemption to the Equal Protection Clause: purported compliance with the disparate impact provision of Title V11. The argument is, based on other cited different Circuit precedent, compliance with Title V11 can’t justify race based preferences. Quotas come into the mix by way of the argument that the affirmed opinion will allow for “racial balancing”—a term of art—which is impermissible under the guise of disparate impact compliance. It seems to me that strict scrutiny ties all the issues together.

Moreover, at least according to the review of the briefs which I read, plaintiffs argue that the affirmed opinion misreads Title V11. They argue that a proper understanding of the law holds that disparate impact needs to be distinguished from *proven* disparate impact, which requires the employer tp prove that an equally valid and less discriminatory test was available. The employer, they argue, cannot refuse to use the test solely on the basis of disparate impact.

Getting back to the 14th Amendment, the plaintiffs argue that the City acted to benefit minorities by dismissing the test results making minority promotion more difficult, it correspondingly denied the white fire fighters promotions because they are white- a quintessential race based state action subject to strict scrutiny not undertaken by the Second Circuit. The alternative argument is that even if the City’s refusal to certify was not racially motivated, which they argue it was of course, the refusal to certify was merely pretextual to deny white promotions as yielded by the test results.

Getting into the Equal Protection analysis the plaintiffs argue avoiding disparate impact is not a compelling state interest because it 1. It allows for “racial balancing” and 2. and would facilitate employers being subject to racial lobbies. Their alternative position is even if avoiding disparate impact is a compelling interest, the City should need strong evidence to show that disparate impact occurred before seeking to remedy it.  Absent that evidence, Title V11 compliance becomes a back door to racial discrimination and quotas. Here, it is argued, there was no evidence of better alternative tests, so the City acted only on disparate results, so that the compelling interest and strict scrutiny standard were not met. Finalizing the Equal Protection argument, the plaintiffs argue that there was not sufficient tailoring by the City in its actions: it could have for instance provided tutoring and study aids for minorities to help bring about better performance.

Lastly he plaintiffs argue that the City’s action violates Title V11. They cite section 2000-2(j) which they argue stops employers from granting preferences to prevent racial imbalances. To comply here, the Plaintiffs argue, the City needs strong evidence of that its use of race was lawful. To avoid Title V11 from becoming a pretext for discrimination the City should be required to show a strong basis in evidence that disparate impact did in fact occur. For such a showing, summary judgment is inappropriate.

I’m not vouching for these arguments, but I am trying to suggest that there is indeed a framing issue that from one perspective looks differently on disparate impact than the way you analyze it

- basman

May 29, 2009 at 1:12am

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Basman,

We can circle back after we have both reviewed the record again, but a few thoughts:

The characterization of the issue as "whether an employer’s action to prevent disparate impact violates Title V11’s prohibition on disparate treatment and whether an employer’s refusal to certify for fear of disparate impact violates the Equal Protection Clause" is not, I think, greatly different than my characterization of the issue other than that it fails to note that Title VII presumptively prohibits disparate impact in addition to prohibiting disparate treatment.

The Equal Protection Clause applies only to public employers, not private employers.  So if the argument is being made that the EPC somehow overrides Tiitle VII's disparate-impact provision, then it needs to be recognized that we will be creating different standards in these situtaions between public employers and private employers.

Generally, "strict-scrutiny" is applied only after it has been proven or stipulated that intentional racial classification has taken place.  It is not a tool for determining whether intentional discrimination has occurred in the first place.  E.g., in the University of Michigan case, there was no dispute that the school was intentionally weighting applications based on race in order to achieve diversity.  So strict-scrutiny was applied and the Court held that achieving diversity was a compelling interest.  

Here, it is being suggested that strict-scrutiny be applied to determine WHETHER the City had engaged in intentional discrimination.  Arguably, that analysis leads to the conclusion that, where an employee is a government entity, the traditional burden-shifting framework should be thrown out the window, and the mere filing of a complaint alleging intentional discrimination under the EPC should trigger strict-scrutiny.

I am not sure what the plaintiffs' brief means by "proven" disparate impact.  To b sure, if the City had used the test-results and the minority firefighters had sued, the minoritiy firefighters would have to prove that the test in fact had a statistically significant disparate impact.  But there is no dispute in this case that test had a disparate impact.  (By the way, I have not heard from those who are apoplectic about this case any concern about the cause of the disparate test results -- other than tio assert that the black and hispanic firefighters are just stupid or are a bunch of lazy bums.  Even McWhorter recognized that the disparate test results potentially reflect a fundamental problem.  His view, however, is that it should be addressed in some way other than discrimination law.)

Back to strict-scrutiny, the plaintiffs apparently agrue that avoiding disparate-impact could not be a compelling government interest.  I'm not sure why that would be true, if achieving diversity in a college student body IS a compelling interest.  In any event, why shouldn't the government interest be characterized as "complying with federal law"?

As to 2000-2)(j), I will have to take a look at it.  But, again, it appears that the plaintiffs want to beg the question.  They want it to be assumed in the first instance that the City was "granting preferences" or "using race" when the counter-argument is that it was merely trying to comply with federal law.

In my view, what we have here is a tension between Title VII's disparate treatment provision and its disparate impact provision.  The ultimate question is whether Title VII should be interpreted to place an employer in the position violating Tilte VII no matter what is does.

(By the way, what is the source of the account you are referencing.  Does it also contain an analysis of the defendant's briefs?)

- dhurtado

May 29, 2009 at 8:59am

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Gimme a minute or two to respond; I'm swamped!

- basman

May 29, 2009 at 1:29pm

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dhurtado

Okay, a few thoughts on your few thoughts.

As I read your way of putting the issue, you start with the unquestioned legitimacy of Title V11’s disparate impact provision and with it, as I read you, being quite straight forward in its operation.  (If  I read you incorrectly, don’t hesitate to straighten me out.) I read you to  go from there to whether the City was justified in scrapping the test results out of fear of action based on that provision. The way I tried to recite the issues arising from the synopsis of the plaintiffs’ briefs comes out more differently than you give credit for, I think. First of all the Equal Protection argument raises serious questions about the scope and operation of the disparate impact provisions of Title V11 such that the case beckons to “fundamentally alter workplace civil rights protections. Another way of saying this is: if strict scrutiny applies to what may be held to be a racial classification—I understand that issue is contentious—then at least in the circumstances of facts like the ready acceptance of disparate impact concerns by the City stand to face serious qualification. Secondly, the Plaintiffs  argue, as you seem not to in your characterization, that test results per se leading to racially imbalanced promotions are not violative: the difference here is between disparate impact and proven disparate impact. As I tried to suggest in my previous note strict scrutiny stands to drive these differences.

That Equal Protection is only available to state employees does not affect the analysis on Ricci, nor do you say it does. But, and I defer to you here, what is the impact on civil rights employment analysis of SCOTUS decisions for similarly situated private employees?  My lay sense is that public/private differences are more likely to be consequential for similarly situated private employees than for SCOTUS analysis of the issues.

You will know American jurisprudence better than I, but from what I have read generally and of and in and around Ricci, I do not understand that strict scrutiny only applies after a finding on intentional racial classification—if we are speaking the same language here. Once it is understood that there has been a racial classification, on my understanding, strict scrutiny applies. I am of course happy to be enlightened otherwise. But I would have thought that a racial classification, once found or held to be such—is it a question of fact, law, or mixed law and fact?—is a racial classification. And I would have thought, though I don’t know, that racially disparate effects could constitute a classification racial as well. So I’m not sure where intentionality comes into it, though I can imagine in trying to determine legislative intent or purpose, intentionality could arise going to the question of whether there has been a racial classification. If so, that would put the analysis on a different footing than you suggest. For strict scrutiny would follow a determination of racial classification; intentionality would, differently, go to the question of whether there is a racial classification. But on these points I’m only musing out loud.

But my musings might meet to your point that “Here, it is being suggested that strict-scrutiny be applied to determine WHETHER the City had engaged in intentional discrimination.” I don’t think that that is either the plaintiffs’ or Cabranes’s analysis. Theirs is that strict scrutiny follows from a finding/holding of a racial classification. A determination otherwise obviates the Equal Protection argument. So to try to meet your further point that the mere filing of a brief throws the burden shifting framework out the window, which does not seem cogent, the classification case has to be made.

As I understand what proven disparate impact means, it means proof that there was an available facially neutral competent test—that tested for what it was designed to (which raises a whole set of other issues)—that would yield less disparate test results. The law seem to be, or is arguably at least, that mere imbalanced test results won’t do the trick. In Ricci we only have scrapped test results. And as I understand it—and one of the areas I find confusing is the burden shfting—there is a real question on whom the burden shifted to, since the employers and the underperforming minorities in Ricci have a mutual interest as distinct from the usual case as Cabranes notes.

For what it is worth I’ll just repeat one of the arguments that avoiding disparate impact is not a compelling interest on these facts: because, it is argued, it allows for impermissible racial balancing.  

Anyway, those are my few thoughts on your few thoughts.

p.s. it jus struck me that it might be more beneficial though less enjoyable to read the transcript of the oral argument, which I presume is available, and then perhaps cite from it to illustrate or support or controvert any of our points.

- basman

May 30, 2009 at 2:26pm

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Basman,

I am reading through all of the materials, starting with the district court's opinion, because I think this is an important topic.  The legitimacy of Title VII's disparate-impact provision is not questioned for purposes of this case.  The plaintiffs have not challenged its constitutionality, and, if it is bad policy, it is up to Congress to repeal it or change it.  

The Supreme Court has insisted for decades that the Equal Protection Clause prohibits only INTENTIONAL discrimination by government entities.  Title VII goes further and prohibits unintentional discrimination (disparate impact) under certain circumstances.  With respect to equal protection claims by minority plaintiffs, that has generally required smoking-gun evidence of intentional, invidious discrimination motivated by racial animus.  With the emergence of so-called "reverse" discrimination, e.g., the use of race in a relatively benign manner to achieve diversity, intentional discrimination came to include the conscious or intentional use of race in making decisions (such as law school admissions), even if no racial animus is involved.  "Strict scutiny" is a mechanism for determining whether intentional discrimination in any particular case is justified.  It can be justified if it serves a "compelling government interest" and if it is sufficiently "narrowly tailored" to serve that interest.  

So the initial question here is whether the City's refusal to use the test constitutes prima facie discrimination under Title VII, so as to trigger the McDonnell Douglas burden-shifting analysis, and/or constitutes intentional discrimination under the Equal Protection Clause so as to trigger strict scrutiny.  Obviously, the City had to be concsious of the race of the test-takers in order to form its concern that using the test would violate Title VII.  But I am hard-pressed to agree that the City's concern about violating federal law and/or being exposed to a lawsuit constitutes either prima facie discrimination under Title VII or intentional discrimination under the EPC.

But assuming that it does constitute prima discrimination, then the court must (and did) go through the burden shifting analysis that I described above.  If it constitutes intentional discrimination, then the question is whether the desire to comply with federal law is a compelling interest, and whether refusing to use the test is a sufficiently narrowly tailored means of addressing that concern.  Perhaps the "narrowly tailored" requirement would require that the City have conducted a validation analysis to determine whether the test is job-related and is the best allternative (again, assuming its actions can be construed as intentional discrimination under the EPC).

As to the argument that complying with Title VII is not a compelling interest because it allows for impermissible racial balancing, that sounds to me like a back-door attack on Title VII itself.  If the City needed to do what it did to comply with federal law, then how could it be "impermissible"?

- dhurtado

May 30, 2009 at 4:01pm

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1. I may have been imprecise or opaque or mistaken in my comments about the relationship between intentionality and racial classification but I agree with this as a general statement of the law as I understand it, from Scalia's concurring opinion in Croson: "I agree with much of the Court's opinion, and, in particular, with JUSTICE O'CONNOR'S conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is "remedial" or "benign." The question in Ricci is whether the city's action amounted to a racial classification and if it did the conundrums that raises in respect of Title V11 as demonstrated below. To say that the court has said for racial classification there must be intentionality seems nevertheless unhelpful in that intentionality will be language used by judges to rationalize the view they take of state action where race places a role. See Roberts below on this point in particular. The split in the Seattle School District makes that clear.

2.  On framing: "...One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that  the facts and law get merged together make for a doctrinal mess. It seems like people talk past each

other constantly...

See: 4909e99d35cada63e7f757471b7243be73e53e14.gripelements.com/.../what_is_a_racial_classification_analysis_of_the_ricci_oral_argument_stephenmenendian.pdf

3. transcript of the oral argument: www.supremecourtus.gov/.../07-1428.pdf

Some pertinent snippets pertinent to what we have been discussing.

page 6. MR. COLEMAN:"... I think your question gets to part of the heart of this case, and that is, ultimately: Is the decision that's being made one that is -- is based in race or is -- is based on a determination that there is an improper test..."

page 9. JUSTICE SOUTER: "...But you make no distinction between race as an animating discriminating object on the one hand and race consciousness on the other...."

page 13. JUSTICE SCALIA: "...-- white or -- or majority applicants in -- in that selection, which is what occurred here. You had -- you had some applicants who were winners, and their -- their promotion was -- was set aside. That doesn't exist in these hypotheticals at all. It's just an abstract question of which of these two systems should be adopted...."

page 15--16  "...but under these facts there is no evidence in this record, and the city conceded below and never asserted in its bio in this case that it had any basis to contest the job-relatedness of this examination or these examinations that were given. That is not part of the record in this case....

case that it had any basis to contest the job-relatedness of this examination or these examinations that were given. That is not part of the record in this case...."

page 17:  MR. COLEMAN: "....No, Your Honor, not in the district court. If you look at 1024a of the Pet. App., the city's lawyer in front of the district court and in its pleadings on summary judgment very clearly states that they didn't believe the job relatedness is even relevant to the case. All that they needed was good faith. They didn't need job relatedness, they didn't need an actual alternative, which is the basis of some of the hypotheticals you're giving. All they need is good faith...."

page 19:  "...MR. COLEMAN: Our argument is clearly that this is not race-conscious, that it is race-based. The only determination that the city made is we don't like the results of this test; there must be something different that we can do; and we don't need to demonstrate..."

page 20.   "..identifiable individuals had earned their promotions; and then the city says too many non-minorities passed this test, and we are going to scuttle these results based on identifiable individuals who have passed and not based on any -- anything approaching a demonstration that there is actually any disparate impact liability...."

page 21--22 "...But what we are saying is that the standard cannot be so light that the City very lightly and without any demonstration whatsoever that there might actually be liability here, based simply on the numbers, can say well, we're going to avoid liability and we're going to favor the minority group over the non-minority group..."

26.  JUSTICE GINSBURG: "...But I thought the whole idea of disparate impact is it's unintentional, that's the assumption, disparate treatment, intentional discrimination, disparate impact, unintentional, but it has askewed racial results..."

26. "...But you may have disparate impact that occurs through no discrimination, intended or otherwise. And Watson clearly recognized that. And when Watson said we need to have strong evidentiary standards in evaluating disparate impact liability, it was recognizing that employers can't act simply to fix numerical disparities, because otherwise that leads to soft quotas...."

page 28-29 "...CHIEF JUSTICE ROBERTS: That's the part I don't understand. What you're saying is that the department can engage in intentional discrimination to avoid concern that they will be sued under disparate impact. Why doesn't it work the other way around as well? Why don't they say, well, we've got to tolerate the disparate impact because otherwise, if we took steps to avoid it, we would be sued for intentional discrimination? This idea that there is this great dilemma -- I mean, it cuts both ways....

30-31:  "..JUSTICE SCALIA: When I say they're at war with one another, I mean they become at war with one another when you say that all that is necessary to permit intentional discrimination is the employer's good faith belief that if he didn't intentionally discriminate, he'd be caught in a situation of disparate impact..."

32. "...JUSTICE ALITO: Mr. Kneedler, could you explain how summary judgment in favor of the defendants on the Title VII disparate treatment claim can possibly be affirmed, even if the employer had reason to believe that the test that was given would expose itself to liability under a disparate impact theory? If that's not the employer's real reason for refusing to go ahead with the promotions, then isn't there liability under a disparate treatment -- under a disparate treatment theory, and that's a question for the jury? So how can we possibly affirm summary judgment here?.."

35. Kennedy "...So shouldn't there be some standard that there has to be a significant, a strong showing after the test has been taken that it's deficient? Before it can be set aside?..."

36.  "...JUSTICE SCALIA: It's whether it is -- it is neutral to set aside a test simply because one race predominates.

MR. KNEEDLER: No, but the -- but the --

JUSTICE SCALIA: How you can call that race-neutral I -- I do not know...."

38. CHIEF JUSTICE ROBERTS: "...Counsel, this may be the same question Justice Breyer asked, but I'd like something closer to a yes or no answer. Does the government consider promotion of diversity by itself a compelling state interest in the employment context as opposed to the school context?

MR. KNEEDLER: We think -- we think it probably is a compelling state interest, but it is not one that -- that can be advanced by race -- by racial classifications. And that -- and that is our basic submission here..."

38 CHIEF JUSTICE ROBERTS: "...Can it be advanced by taking actions to avoid what is perceived as a disparate impact?

MR. KNEEDLER: Yes.

CHIEF JUSTICE ROBERTS: In other words, the disparate impact is regarded as something you can intentionally respond to by drawing racial distinctions solely because you would like a more diverse workforce..."

39   CHIEF JUSTICE ROBERTS: "...It didn't care -- it

had to draw racial distinctions because it looked at the test and said, we think there's a problem because of the racial makeup of who's going to get the promotions.

MR. KNEEDLER: The employer was responding to the discriminatory test or what -- what it was reasonably concerned was a discriminatory test --

JUSTICE KENNEDY: But it looked at the --MR. KNEEDLER: -- not the individual --JUSTICE KENNEDY: Counsel, it looked at the

results, and it classified the successful and

unsuccessful applicants by race. MR. KNEEDLER: It -- it --JUSTICE KENNEDY: And then -- and you want

us to say this isn't race? I have -- I have trouble with this argument...."

39-40  CHIEF JUSTICE ROBERTS: "It didn't look at names; it just looked at the label of what their race was. That's all they were concerned about...."

40.   JUSTICE KENNEDY: "...But that's inconsistent with your answer to the Chief Justice who was exploring whether or not what we have here is a -- is a racial criteria, pure and simple, and you say, well, it's general. And then we point out that each applicant didn't have his name, but they had his or her race..."

46-47. "...CHIEF JUSTICE ROBERTS:

So your position is what? They threw out the test, so you would have no problem at all if they looked at those results and they were predominantly black rather than white; you would say the city can throw out the test and there's no racial discrimination there at all?

MR. MEADE: No, I would say that there's no classification. However, there's another way to trigger strict scrutiny and that comes under cases like Arlington Heights and Feeney, and the action that the --the facially neutral action that the city took here falls under that line of cases. And then --

JUSTICE SCALIA: I don't see how you can call it facially neutral. It's neutral because you throw it out for the losers as well as for the winners? That's neutrality?...

47. "...MR. MEADE: There is no classification, because each individual, and -- when a particular individual is looked at and a decision is made on the basis of race, that is a racial classification. If --

CHIEF JUSTICE ROBERTS: So this case would come out differently, if the list was there with then names and they go down and instead of saying throw out the test, they said Jones, you don't get the promotion because you're white; Johnson, you don't get it because you're white. And they go down the list and throw out everybody who took the test; then that would be all right?...

48.  CHIEF JUSTICE ROBERTS: "...So they can keep --they get do-overs until it comes out right? Or throw out this test; they do another test; oh, it's just as bad, throw that one out; get another one that's a little better, but not so -- throw that one out?..."

50.  MR. MEADE: "...Justice Breyer, there are two ways to enter strict scrutiny. One is a racial classification which makes different decisions based on different individuals on the basis of race. Cases like Croson or Wygant or even affirmative action plans are examples of making different distinctions based on different individuals on the basis of race.

There is another line of cases about --where there's a discriminatory purpose plus adverse impact on a certain group under the Arlington Heights line of cases....

51.  CHIEF JUSTICE ROBERTS: "...Is that -- I am sorry. Is that correct if we -- we conclude strict scrutiny does apply under the Constitution? Compliance with a statute, looking at impact, is a compelling interest trumping strict scrutiny under the Equal Protection Clause?..."

51-52. CHIEF JUSTICE ROBERTS:"... I guess it would go to how you construe the statute. It seems to me an odd argument to say that you can violate the Constitution because you have to comply with the statute...."

52.  JUSTICE KENNEDY: "...Well -- well, but you are loading the -- the equation. The Chief Justice's question I don't think has been -- been fully answered. You are -- you are saying that you can eliminate constitutional concerns because the statute is enacted, which just repeats those same constitutional concerns. It's -- it's like having two tracks on the audio that don't quite fit...."

53. MR. MEADE: "...Well, the line is set out by this Court's cases. So assuming strict scrutiny applies and assuming that compliance with Title VII is a compelling interest, then the question is whether an employer has a sufficient basis. And this Court's cases, both in the intentional and unintentional context, say that that's a strong basis in evidence, and so that would be the relevant test...."

54. Roberts  "... Now, why is this not intentional discrimination? I understood you to say it was because you don't have particular individuals being treated on the basis of their race. You are going to have to explain that to me again, because there are particular individuals here. They are the plaintiffs, and they say they didn't get their jobs because of intentional racial action by the -- the city. Why is that not on the racial -- intentionally racial discrimination side rather than the permissible race consciousness side?.."

55. Roberts  "...there are many cases, Croson, Adarand, Wygant, Parents Involved, where we said action taken obviously because of race is nonetheless discrimination. So -- and then there are cases where we have recognized that race conscious action is permissible. Again, what -- when I look at something like this, how I do decide which side of the line that's on -- this is on?.."

65. "..CHIEF JUSTICE ROBERTS: So I guess, my -- so my -- your position is that you should never have a strong basis in fact standard, because you don't think strict scrutiny should apply, and you think if it's under Title VII, it's only reasonableness?

MR. MEADE: That's correct.

CHIEF JUSTICE ROBERTS: So your position is that the city -- the -- the government can take action without -- only if it's reasonable. It's a reasonable view of whether or not they might or might not be liable. That's the standard. And then they can engage in race-based action?..."

74-75.   MR. COLEMAN: "...The difference is this, Justice Ginsburg: The example you have given would clearly satisfy or likely satisfy a strong basis in evidence that you are actually in violation of the disparate impact provision of Title VII. There are three prongs. The first is adverse impact; the second is that your test is not related; and the third is the existence of this alternative that is equally valid and that results in lower disparate impact.

The City has never asserted -- and I hear it today continue to say, we don't have to show those other two prongs, that a numerical disparity enough may allow the City to conclude that there must be something wrong with the test. This kind of res ipsa loquitur theory of disparate impact is one that the courts have not recognized and that Watson said we cannot allow because it results in racial balancing and soft quotas based on disparate impact ..."

- basman

May 31, 2009 at 1:09am

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Basman,

For convenience, I repeat your excerpt of Scalia's concurrence in Croson:  "I agree with much of the Court's opinion, and, in particular, with JUSTICE O'CONNOR'S conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is "remedial" or "benign."  

I have not followed the caselaw closely enough to confirm that Scalia's statemet is a correct statement of current Supreme Court law, but I think we can assume that it is for present purposes.

In this case, then, the question under Equal Protection Clause analysis is whether the City's actions constituted a "classification by race" so as to trigger strict scrutiny.  Even Justice Roberts acknowledged at oral argument that not all "race-conscious" government actions are "racial classifications" within the meaning of equal protection jurisprudence.  Indeed, Justice Souter made the point rather forcefully in his questioning that "race conscious" actions are not necessarily the same thing as intentionally discriminatory actions.  In particular, he pointed out, Title VII requires that employers, including government employers, be "race-conscious" in that it requires them to be conscious of whether an employment practice has a racially disparate impact and to avoid using such a practice unless it can make certain showings.  (More broadly, the enforcement of the Equal Protection Clause, Title VII and other civil rights laws requires "race-consciouness" on the part of government.)

Viewed in that light, it is not clear to me (and it appeared not to be clear to at least Souter, Breyer and Ginsburg) that the City's refusal to use the results of the test because it excluded all blacks and Hispanics, and therefore presumptively violated Tiitle VII ,constitutes either intentional discrimination or racial classification under EPC jurisprudence, or whether it is merely the kind of race-consciousness that Title VII requires.  And even if it is "racial classification" under the EPC, the question will be whether compliance with federal law is a "compelling interest," and if so, what kind of showing the City needed (or needs) to make in order to demonstrate that the compelling interest was actually implicated.

Some of the questioning by Roberts and Kennedy in this regard is interesting.  (I don't know how to copy and paste into this site, so I may have to paraphrase.)  Roberts asked:  

"Is that correct if we -- we conclude strict scrutiny does apply under the Constitution? Compliance with a statute, looking at impact, is a compelling interest trumping strict scrutiny under the Equal Protection Clause?..."  

Roberts probably wishes he had that question back.  As Meade (the City's lawyer) explained, "compelling interest" is PART OF the strict-scrutiny analysis, and therefore it is nonsensical to speak of compelling-interest as "trumping" strict scrutiny.  

With regard to the argument that compliance with Title VII is a "compelling interest," Roberts remarked:  "I guess it would go to how you construe the statute. It seems to me an odd argument to say that you can violate the Constitution because you have to comply with the statute...."  Robert's  question completely begs the issue, which is whether compliance with the statute is a compelling interest such that the City's actions did NOT violate the Constitution.

But then Kennedy presses on:  "Well -- well, but you are loading the -- the equation. The Chief Justice's question I don't think has been -- been fully answered. You are -- you are saying that you can eliminate constitutional concerns because the statute is enacted, which just repeats those same constitutional concerns. It's -- it's like having two tracks on the audio that don't quite fit...."

Huh??  So Kennedy is going to decide this case based on his opinion that Title VII's disparate-impact provision is unconstitutional?  Title VII is congressionally enacted law that has been in place for 40 years.  No party in the Ricci case has challenged its constitutionality.  If the Court were to conclude that compliance with Title VII's disparate impact provision is not a compelling interest because the provision is unconstitutional, that would be judicial "activism" in the most perjorative sense of the word.  Presumably, he was merely posturing.

Thanks for the excerpts from the oral argument.  I re-read the oral argument last night and this morning.  I am not sure how helpful your excerpts will be because, in most cases, they do not include the response of counsel to the justices' statements/questions.  Nor do they include any of the questioning by Ginsburg, Souter and Breyer.  To my mind, Justice Souter's questioning was particularly insightful and I recommend it to anyone who is interested.

- dhurtado

May 31, 2009 at 4:22pm

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...I am not sure how helpful your excerpts will be because, in most cases, they do not include the response of counsel to the justices' statements/questions.  Nor do they include any of the questioning by Ginsburg, Souter and Breyer...

Now why would include any of that? It doesn't help with anything I'm trying to suggest.

Just kidding.

I wanted to to cite stuff that went to illustrate the wide divergence of thinking on just what iare the issues the case raise, how the framing fight is going on and the views taken of those issues, stuff going to what I have been discussing with you..

I'd like to make a few more comments on your comments when I have a better moment.

Have a good week in any event.

- basman

May 31, 2009 at 4:51pm

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Dhurtado as to your last comments:

On the issue of racial classification there is no conceptual disagreement between us on the distinction between race consciousness and impermissible racial classification. Clearly, at least to me, Ricci is a hard case in relation to that distinction. And in hard cases, it seems trite to say, something other than legal analysis is going to be dispositive as, again, the Seattle School District case illustrates. One judge’s race consciousness will be another’s classification and versa vice. And if it’s not clear to you where on that side of the divide Ricci falls, it is, I can assure you no clearer to me. I’d think there would have to be evidence led on that issue and that the summary judgment is inconsistent with that. Were that to be the outcome—and it is I think the Government’s position—that is a significant achievement on appeal by the Plaintiffs and would somewhat vindicate Cabranes’s dissent speaking for his 6 fellow judges.

(btw if you have time check this out: bloggingheads.tv/.../20109)

You say the constitutionality of the disparate impact provision is/shouldn’t be before the court. And the guy whose article I cited for the quote about framing says the same thing. That observation seems correct. I suppose that to do that, the issue has to be raised in pleadings or somewhere analogous and certain notifications have to be served on the government(s?) (and the other parties of course) as to raising a constitutional question. But I can’t imagine that not doing these stops the court from construing or reading down that provision.

I think Roberts, though a bit garbled, was being disingenuous in saying: “…"...Is that -- I am sorry. Is that correct if we -- we conclude strict scrutiny does apply under the Constitution? Compliance with a statute, looking at impact, is a compelling interest trumping strict scrutiny under the Equal Protection Clause?..." He was saying, I take it, in the context of his general remarks and questions, as if to summarize an absurd legal position: “Are you saying that racially classifying in an attempt to comply with Title V11 constitutes a compelling interest which satisfies strict scrutiny itself raised by racially classifying?” And to support that, that is why later he says soon after as you note, “…I guess it would go to how you construe the statute. It seems to me an odd argument to say that you can violate the Constitution because you have to comply with the statute….”

I think in fact Kennedy is trying to say the same thing with: “…52.  JUSTICE KENNEDY: "...Well -- well, but you are loading the -- the equation. The Chief Justice's question I don't think has been -- been fully answered. You are -- you are saying that you can eliminate constitutional concerns because the statute is enacted, which just repeats those same constitutional concerns. It's -- it's like having two tracks on the audio that don't quite fit...."

My take is that the point here is that if what the City did was to racially classify to meet what Title V11 demands then the argument that complying with Title V11 is a compelling interest must falter because you can’t violate Equal Protection by impermissibly classifying to meet the demands of a statute. Those are the “two tracks” that don’t fit, on my reading. And where his reasoning would take him, different than what you say, and as I have already suggested, is to construe narrowly or read down diverse impact.

- basman

June 1, 2009 at 2:57pm

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Basman, I am trying to conceive of a way the Court could construe Title VII's disparate-impact provision so that it does not require the City to do what it did in Ricci, that is, avoid using a test that has a statistically significant disparate impact unless it can make certain showings.  And if the Court could re-construe Ttitle VII without doing violence to the statutory text and to Supreme Court precedent, how could one justify holding the City liable for complying with a federal law that the Court is re-interpreting post-hoc?

At most, Roberts and company's position should be:  

"We don't like Title VII's disparate-impact provision, and believe it is of questionable constitutionality, but its constitutionality is not before the Court.  Therefore, we hold that a good faith concern with complying with Title VII is a legitimate nondiscriminatory purpose within the meaning of our precedent regarding the enforcement of Title VII's disparate-treatment provision.  We also hold that complying with federal law is a compelling state interest under the Equal Protection Clause.

"However, we remand the matter for a determination of whether the City's proffered reason of complying with federal law was neverthless a pretext for discrimination.  We also remand the matter for determination of whether there is a strong basis in evidence that the interest in complying with federal law was genuinely implicated in these circumstances."

That would at least be, in my view, a defensible ruling.  I am unsure that the City's actions even implicate the Equal Protection Clause for the reasons suggested by Souter.  I also am unsure that the record is not complete enough to decide the case without a remand.  But at least something like the foregoing ruling would be defensible.  Invalidating Title VII through the back door would not, in my view, be legitimate judging.

- dhurtado

June 1, 2009 at 3:44pm

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ps.  We might recall that the genesis of this discussion was the assertion in some quarters that the trial judge, Judge Sotomayor, the other two panelists on the Second Circuit, and the four additional judges on the Second Circuit who voted to deny rehearing, were perpetrating an outrageous decision.  If nothing else, this discussion should dispel that notion.  Controversial?  Sure.  Outrageous?  I don't think so.

- dhurtado

June 1, 2009 at 4:57pm

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More questions here than anything else:

Disparate impact sound to me like a hash and a mess. We have nothing like it in Canada. But it’s your law. The plaintiffs say the law of it is—at least according to certain cases they cite I think from other Circuits—that disparate results, one instance of disproportionate numbers, is not disparate impact for the purposes Title V11. (I still get lost in the burden shifting.) Someone, they say, needs to come up with an equally functional test with a less disparate result. Failing that, then the test results should be certified. The plaintiffs’ argue the City did nothing but rely on the numbers after a futile hearing about certification. The plaintiffs argue the City did what it did because of the black white divide in the results which is, they say, a classification. With Ricci as it sits in the Second Circuit and these other cases there are conflicting lines of Circuit authority, which is, is it not, a classic case for SCOTUS to take jurisdiction. (Mind you Cabranes says these are issues of first impression.)The Canadian Supreme Court in its judgments sometimes fills in legislative gaps often, codifies procedures and so on. Does yours?

If the city is held to have run afoul of a novel view of disparate impact, I imagine that that could affect what might  otherwise be an award of damages, by making them nominal or not awarding them. I don’t know what your law is. Here I only do private law and have never encountered the issue in my practice or elsewhere and have never of course briefed it. The closest I can come to is costs which in Canada follow the event presumptively. If the case turns on a novel point, often, likely, no award of costs is made for that very reason.

In your draft ruling, aren’t you using the “strong basis in evidence” language inaptly? That language is the plaintiffs’ for what it says needs to be shown before disparate impact is made out. Isn’t the question of whether the City intentionally discriminated or acted in good faith resolved according to the normal civil burden of proof on the balance of probabilities, or whatever your verbal formula is?

If the right wing 4 can get Kennedy on their team, you may well get an interpretive overhaul of disparate impact. You would if the 4 themselves could rule on the issue, I’d think.

Could SCOTUS hold that disparate impact means in law more than just relying on test numbers without more, and then  send the case back to be litigated according to that standard?

- basman

June 1, 2009 at 5:36pm

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...ps.  We might recall that the genesis of this discussion was the assertion in some quarters that the trial judge, Judge Sotomayor, the other two panelists on the Second Circuit, and the four additional judges on the Second Circuit who voted to deny rehearing, were perpetrating an outrageous decision.  If nothing else, this discussion should dispel that notion.  Controversial?  Sure.  Outrageous?  I don't think so...

Agreed. On this point I surrender and truth to tell have now made your argument to some who have called her outrageous.

I'm shameless, but I'm cute.

- basman

June 1, 2009 at 5:38pm

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Title VII currently does require more than a statistically disparate impact for liability.  It requires that the employer is unable to show job-relatedness, or that the plaintiff can show that there is a less discriminatory alternative.  Thus, the disparate impact gives rise to only a presumptive violation, which can be rebutted if the employer can show job-relatedness and that there is no better alternative.

But this is indeed a case of first impression because the employer is being challenged for NOT using a presumptively unlawful test rather than for using a presumptively unlawful test.  There is nothing in Title VII that requires an employer to use a test having a statistically disparate impact unless it can satisfy itelf that the test is invalid or that there is a better alternative.  I don't see how the Court could construe it otherwise.  I don't know about "filling the gaps" of statutory law, but our courts can resolve amibguities in statutory language by consulting the overall statutory regime and/or the legislative history, etc.  And there is an interpretive canon that statutes should be construed, where possible, in a way that upholds their constitutionality.  But courts can't just re-write a statute to make it what the court believes is constitutional if the statutory text and structure do not bear that construction.

As to the Court re-construing Title VII in a way that makes the City liable, but then going easy on damages:  Let's assume that the trial court, upon remand, finds liability under both Titlle VII and the EPC based on the Court's reconstruction of Title VII.  In that event, damages under the EPC may not be available as a matter of law because under qualified-immunity jurisprudence a government actor can be held liable for constitutional damages only where the constitutional principle in question is well-established, such that the government actor knew or should have known that his or her actions were unconstitutional.  Under Title VII, the trial court may have equitable disrection to decline to award back-pay,etc.  But you can be sure that the plaintiffs would appeal the non-award as an abuse of discretion.  Who knows how that would finally be resolved?

I think "strong basis in evidence" is the standard for showing compelling interest under the strict-scrutiny analysis.  I think that is one of the few instances in which the defendant has the burden of proof, because it is essentially an affirmative defense.  Under Title VII, an employer needs minimal evidence of a non-discriminatory reason for the prima facie discrimination; it need only articulate a non-discriminatory reason, and the burden reverts to the plaintiff to prove pretext.  

I am sure Scalia, Roberts, Alito and probably Thomas would like to overhaul Title VII, but I don't see how they could legitmately do so.

As noted, liability for disparate impact does require more than just a statistical disparity.  The question here is whether the City could decline to use the test based solely on the statistical disparity, or whether it was required to have some additional reason for believing it could be liable under Title VII.  The Court could very well hold that the City needed someting more than the statistical disparity and remand based on that standard.

- dhurtado

June 2, 2009 at 12:54am

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Okay thanks for your last post.

I'm kinda' tuckered out with this.

I'll talk to you about this when the decision comes down, and about other things before that I'm sure.

Any bets though on the result?

- basman

June 2, 2009 at 1:17am

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Thanks Basman.  My bet is is that the majority will rule that compliance with Title VII can be both a non-prextual reason and a compelling interest with regard to discarding the test, but that a statistical disparity is not, by itself, sufficient to establish either of those defenses.  It will remand the matter the give the plaintiffs the opportunity to show pretext under Title VII, and the defendants the chance to show a compelling interest under strict-scrutiny analysis.  I.e., the Court will largely adopt the US government's amicus argument.  I would not be shocked if Breyer joins Kennedy and the "right wing four" in that ruling.  One of the "right wing four" may write a concurring opinion trashing Title VII's disparate-impact provision, and implicity inviting a future litigant to challenge its constitutionality.  I think Souter will write a dissenting opinion, which will be joined by Ginsburg and Stevens.

- dhurtado

June 2, 2009 at 8:36am

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one last mite of a comment:

Given your outcome, all the record shows is a statistical disparity.

If it's not enough, how can a defence arise?

- basman

June 3, 2009 at 1:21pm

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Note that the foregoing is my prediction, not necessarily what I think would be the correct outcome.  I am certain that the Court would regard remand as a bad result for the City.

But, under Title VII, it would be the plaintiffs' burden to prove that the City did not have a reasonable belief that the test might violate the law.  There apparantly is evidence in the record that the City had SOME evidence that the test may not be valid or that a better alternative might be available.  Or, the EXTENT of the disparity (which in this case is a gross disparity) might be enough the make the City's concerns reasonable.  Those would be questions for the jury to decide.

Under the equal protection clause, the analysis will be similar, except that the burden will be on the City to show a "strong basis in evidence" that it had a genuine concern that the test would violate federal law.  That will be a tougher standard for the City.  Whether it can prevail may depend upon how the members of the Civil Service Board come off on the witness stand.

- dhurtado

June 3, 2009 at 2:35pm

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...But, under Title VII, it would be the plaintiffs' burden to prove that the City did not have a reasonable belief that the test might violate the law.  There apparantly is evidence in the record that the City had SOME evidence that the test may not be valid or that a better alternative might be available.  Or, the EXTENT of the disparity (which in this case is a gross disparity) might be enough the make the City's concerns reasonable.  Those would be questions for the jury to decide....

I understand it's just your prediction.

I am not aware of the "some evidence"; mind you I have yet to read the the lower court decision. My impression was that the certification hearing was an evidentiary wash, that there was evidence pro and con the test, and nothing decided--and only in that sense was there "some evidence".  What I am thinking is that a majority--the four plus Kennedy--are interested in reinstating the test results and allowing for the promotions which would follow. I don't know whether the court could fashion such a disposition. I imagine it could if it took a particluar view of disparate impact--and in effectrendered its own judgment without trial ( I didn't realize there had been discoveries), in a kind of reverse mirror of what Atherton did as affirmed.  It then might send the case back on the question of liability for damages and quantum. My intuition is that if the right wing 4 could get Kennedy on board, they'd want to do such a thing. And I have read and I think mentioned that Kennedy is quite diffident to hostile as to what he considers affirmative action plans.

If I had to guess which outcome is more likely, I 'd guess  yours.

- basman

June 3, 2009 at 4:40pm

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You are correct that there was conflicting evidence.  Whether the "some evidence" would be enough would depend in part on the standard that the Court imposes.  If it holds that the City actually has to prove a disparate-impact case against itself, then the evidence would likely not be sufficient.  In that event, the Court could not order summary judgment for the plaintiffs because the denial of the plaintiffs' cross-motion for summary judgment was not appealed.  Upon remand, the trial court could reconsider the plaintiffs' motion for summary judgment in light of the Supreme Court's legal rulings.

- dhurtado

June 3, 2009 at 6:04pm

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...In that event, the Court could not order summary judgment for the plaintiffs because the denial of the plaintiffs' cross-motion for summary judgment was not appealed...

Are you certain of that?

Interesting point if so. I had not known/considered that.

Mind you if in a much simpler case  a and b sue each other and both move for summary judgment on their claims and the court grants a judgment and hence dismisses b's motion and b appeals the granting of a's motion but (by oversight  or misconception though it's hard to imagine ) not the dismissal of b's motion, and the court concludes--either directly or by so stating the law-- in the coures of its deliberations that b's motion for summary judgment ought to --or effectively ought to--succeed or have succeeded, it strikes me as anomolous that b couldn't get judgment. from the appeal court. regardless --perhaps on a moton to amend the appeal.  At the very least a strong enough statement in b's favour  would bind a lower court on b's futher motion for summary judgment. It seems passing strange from almost every standpoint I can think of that the plainitffs would not have not appealed the dismissal of their motion. It seems a  repudiation of their own lower court position and to me (unless I am missing some salient consideration)  hints at negligence. All I can think of is that in complex circumstances of this case, there was an assessment that it was beyond the realm of probability that summary judgment on appeal would go to the plaintiffs and they did not want to be seen as taking a ludicrous position.

What am I missing?

And what in their  Brief or Notice of Appeal or factum or wherever are the plainitffs asking SCOTUS to do exactly, if you know?

- basman

June 3, 2009 at 6:45pm

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p,s,  ...All I can think of is that in complex circumstances of this case, there was an assessment that it was beyond the realm of probability that summary judgment on appeal would go to the plaintiffs and they did not want to be seen as taking a ludicrous position...

That would be a judgment call and hence not negligence plus--at least under Anglo Canadian law-- there is a very strong presumption--it used to be virtually absolute, but no longer-- against liability for decisions llitigators  take in the course of litigation.

- basman

June 3, 2009 at 7:02pm

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Basman, a denial of summary judgment (as opposed to a grant of summary judgment) is generally not appealable under US federal rules of procedure because it is not a final judgment, and generally only final judgments are appealable (to prevent piece-meal appeals, etc.).  So that's why the plaintiffs would not have appealed the denial of their summary judgment motion.  That said, you are correct that the Supreme Court could issue a legal ruling that virtually compels the trial court to enter summary judgment of behelf of the plaintiffs upon remand.

As to the relief plaintiffs are seeking, their main brief in the Supreme Court simply asks that "the judgment of the Second Circuit be reversed."  Perhaps their petition for certiorari is more specific.

- dhurtado

June 3, 2009 at 8:29pm

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...Basman, a denial of summary judgment (as opposed to a grant of summary judgment) is generally not appealable under US federal rules of procedure because it is not a final judgment, and generally only final judgments are appealable (to prevent piece-meal appeals, etc.)....

This too is an interesting point refining the discussion.. But:

Here too we distinguish between final orders where there is an automatic right of appeal and interlocutory orders which do not ultimately resolve a cause of action or a defence.

But for the latter, in Ontario, there is not "no right of an appeal", but, rather,  the need to ask for leave to appeal. It's hard to get; the test is:

"...Grounds on Which Leave May Be Granted

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted..'

It is inconceivable to me that your rules don't have an analogous provision. So then the plainitffs would have needed to make their request for leave to appeal simultaneous with their appeal, or however your procedures work.

Mind you in Ontario and elsewhere in Canada, I'm pretty sure, there is *no appeal* from a refusal of leave to appeal.

We don't have motions for "reconsideration" as you do unless we can't settle the order or unless there is a fraud on the court, some inadveratnt slip, or fresh evidence or something the court blatantly overlooked. And that's to the judge who dealt with the issues, not an increased number of judges or the whole court sitting en banc.

Counsel are very reluctant to raise issues with the judge after decision but before the formalization of the order --at which point the judge becomes functus. It's considered sharp practice verging on the unethical to try to re-argue after decision without a solid reason. Such counsel who try very quickly get reps with other lawyers and judges  as bad eggs who are not to be trusted.

- basman

June 3, 2009 at 9:04pm

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p.s. I know you said not "no right of appeal", but, rather,  "generally". Regardless my point still stands, even if it's only trying to come within the exceptions to that "generally".

- basman

June 3, 2009 at 9:20pm

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Exactly, we also have interlocutory appeals that may be granted by permission.  They are much more likely to be granted in the context of preliminary injunctions than a denial of summary judgment.  Interestingly, the plaintiffs' notice of appeal purports to appeal from the "judgment . . . upon the District Court's denial of summary judgment to the plaintiffs and grant of summary judgment to the defendants."  As far as I can tell, however, the plaintiffs never sought leave to appeal the denial of summary judgment, and the Second Circuit's order characterizes the appeal as being "from a judgment . . . granting the defendants' motion for summary judgment on all counts."  So procedurally, I think the Supreme Court has to either affirm or remand.

- dhurtado

June 3, 2009 at 11:54pm

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...So procedurally, I think the Supreme Court has to either affirm or remand...

You know your court better than I of course, but I always sense its leaping over slight technical hurdles to get to where it wants to go. It strikes me that in the unlikey event that a majority wanted to do something specific for the plaintiffs, presuming of course the plainitffs are asking for same, the technicalities surrounding the failure to get leave and the like would not be a formidable obstacle. But that's more a hunch than anything else.

- basman

June 4, 2009 at 10:15am

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If you follow the links and have time and interest here is audio of oral argument before the 2nd Circ. panel. Read around the link it explains the context.

I haven't heard it yet.

- basman

June 4, 2009 at 10:25am

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sorry this may be a better link: blogs.wsj.com/.../sotomayor-tape-reveals-views-on-ricci-v-destefano-discrimination-case

- basman

June 4, 2009 at 10:27am

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Well, even if the Court wants to rule that the plaintiffs are entiitled to summary judgment, it wouldn't just enter summary judgment, but would remand with intstructions to enter summary judgment.  But rather than do something that arguably exceeds its jurisdiction, I think it would, instead, establish a legal standard that virtually compels the trial court to enter summary judgment for the plaintiffs.

Thanks on the link to the argument.  I had already listened to it a couple of days ago.  I think you will find that Sotomayor was quite impressive.  But it's a matter of perception, of course.

- dhurtado

June 4, 2009 at 11:44am

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...Well, even if the Court wants to rule that the plaintiffs are entiitled to summary judgment, it wouldn't just enter summary judgment, but would remand with intstructions to enter summary judgment. Well, even if the Court wants to rule that the plaintiffs are entiitled to summary judgment, it wouldn't just enter summary judgment, but would remand with intstructions to enter summary judgment....

Okay but that but that's in effect the same. thing I'm pointing to. But I appeciate the clarification. In Canada, an appellate court, if the appeal is properly framed, can in a proper case award summary judgment fro the bench including the SC of C.

She's interesting to listen to, very strong willed. I like how she stumbled when plaintiffs' counsel asked her "what business necessity."  I think she's more domineering than impressive, but she's not unimpressive. She's tough but fair to counsel. And she's even handed in the toughness of her questioning, She sure likes to take control. She's smart enough but not sweepingly smart I didn't think, not that she has to be. I find her workwoman like, surely competent ,but not a stand out. The rest of the panel could barely get a word in edgewise. One wouldn't know at the end of argument how the panel would rule.

One thing that interested me is the difference in styles of argument at this level before your country and mine. When I was going to court more than I do now, back in the full flower of my practice, I argued in the Ontraio Court of Appeal, the province's highest appeal court any number of times. Only once did I argue before the SC of Canada. I could never have said to an appellate judge "you bet" or asked pointedy "what business necessity". or emoted about fire fighters or anything else. We nice Canadians are much more deferential. Mind you I have no compunction about being that straightforward with trial and motions judges.

One last comment, I thought plainitffs' counsel was good and my emotions through the argument were with Ricci et al.

It be fascinating.

- basman

June 4, 2009 at 12:32pm

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I did not infer as much from the argument before Sotomayor as you did, but my reactions are similar, except that I would use the word "dominant" rather than "domineering," the latter of which seems a bit perjorative.  (Perhaps you meant it to be.)  Sotomayor's demeanor was consistent with how she was described to me by a colleague who has appeared before her a couple of times:  She is a tough questioner but she is fair and even-handed.  Those who think she is too tough should argue before a couple of our judges in the 7th Circuit.  She is prepared and asks pertinent questions.

I do not think the argument style of Ricci's lawyer is typical of how American lawyers argue before appellate courts.  The style of the City's attorney was more representative.  At the end, Ricci's lawyer went on at length about how the City had supposedly also screwed some blacks and Hispanics out of promotions in favor of some of the mayor's "cronies" who were not qualified at all.  As far as I know, there is no evidence in the record to support those allegations, but, in any event, Ricci's lawyer was shooting herself in the foot.  If "cronyism" was the real motivation, Ricci should lose.  As Scalia held in St. Mary's v. Hicks, even if an employer lies about its real reasons for adverse employment action, the plaintiff still must prove that the real reason is racial animus.  An employer is free to have a "bad" reason as long as it is not racial discrimination.

In any event, the panel was very patient with plaintiffs' counsel, and Sotomayor finally broke in and reminded her that the issue was not hiring people who are unqualified, but whether the City was permitted to set the current test aside and look for one that was both valid and less discriminatory.

I'll have to go back and listen to the "what business necessity" comment.  Given that it would be the plaintiffs' position that the test did have a "business necessity," I don't see why the plaintiffs' counsel would question it.

- dhurtado

June 4, 2009 at 1:56pm

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I take your point about domineering as opposed to dominant. I think someone can be domineering which implies trying to be dominant without being dominant. I think here it’s a bit of both with her, and my use of the word was *mildly* pejorative.

Interesting to hear that Ricci’s counsel was atypical as appellate counsel go, I thought regardless she was quite effective, though that’s not borne out by the result.

I kind of glided over the cronyism thing. But my shaky recall is that cronyism had happened in past hiring, was an example of selective and dubious practices now morphed into the instant case as a  racial thing. Plaintiffs’ counsel was very emphatic earlier in her argument about how at bottom the City’s action was racial and nothing but racial.

As I recall business necessity, Sotomayor was pointing to a business necessity exception to something, which could support the city’s action—I can’t remember precisely what—and counsel asked her pointedly “What business necessity?”, i.e. what business necessity did the City have to look to as a reason for its action, which had S. flummoxed for a second or three, at least to my ears.

- basman

June 4, 2009 at 2:30pm

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Well, the City was purportedly concerned that it could NOT show business necessity, and therefore would be liable under Title VII if it used the results of the test.  So it would be odd for the plaintiffs' counsel to be questioning whether there was a business necessity for the test.  Perhaps that's why Sotomayor was "flummoxed" for a beat.  Or perhaps she was taken aback by counsel's lack of decorum.  I'll listen to it again when I get a moment.

- dhurtado

June 4, 2009 at 3:00pm

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Yeah, but regardless of the City's concern, what I recall is that S. put business necessity as a (hypothetical?) assertion against the plaintiff  and that led to "what business necessity" . In other words, S. put the question. I t was not raised by P's counsel ,only answered by her. I just cannot reconstruct from memory the context  giving rise to S.'s question or comment about it.

After you have listened it to again, tell me whether my recollection is wrong and if you don't mind remind me of the context.

Thanks

- basman

June 4, 2009 at 4:11pm

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Basman, it was Chief Judge Pooler who asked "what is the businsess necessity" of plaintiffs' counsel, Karen Torre.  Judge Sotomayor stated that the law says an employer cannot use a test with a disparate impact unless there is a business necessity.  Judge Pooler then asked, "what is the business necessity."  Torre answered that there was no dispute that the test was job-related (but did not address whether there was an alternative with a less disparate impact).

In her rebuttal argument, Torre asserted that after the CSB refused to certify the test, it was discovered that there were more vacancies than previously thought, and that there were three blacks and three hispanics that would have been promoted but for the scrapping of the test.  The City nevertheless did not use the test, according Torre, because the mayor wanted to promote some of his friends.  She said that proved that the City's concern was not disparate impact.  Judge Pooler then asked whether the plaintiffs' position was that the City's professed concern about violating Title VII was a pretext.  Torre said, "you betcha" it's pretext.  The City's decision had nothing to do with Title VII, but was about pleasing the mayor's cronies.  If those allegations were true -- plaintiffs lose.

- dhurtado

June 4, 2009 at 11:20pm

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okay thanks.

I guess I heard wrongly.

- basman

June 5, 2009 at 8:52am

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Maybe when I get a quiter less busy minute, I'll listen to it again to see how my ears, brain deceived me.

- basman

June 5, 2009 at 2:45pm

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p.s saw Nina Tottenberg (sp?) on Rachel Maddow. she says the "smart money"--my paraphrase, not her phrase-- thinks is that Ricci is going to be reversed and the question is only how by how much.

- basman

June 5, 2009 at 11:52pm

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p.s. She aslo speculated that if sweepingly, that will make things more difficult for Sotomayor but not so as to hobble her appointment.

- basman

June 5, 2009 at 11:54pm

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Not too far from my predicttion.  As I noted somewhere above, I would not be shocked if Breyer joined a majority that reverses the Ricci decision.  Breyer has gone both ways in these kinds of cases by making some hair-spliting distinctions.  But I would be surprised if any of Souter, Ginsburg or Stevens votes to reverse.  I know that there are some who will make hay out of a reversal of the Second Circuit decision, but it's hard to see how the criticism would be legitimate given that this is a case of first impression and that the Court will be making new precedent regardless of how it decides.  

- dhurtado

June 7, 2009 at 11:31am

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This will tell you how nuts I am.

I am planning to take a mini holiday from my work, if I can clear matters, simply to watch the full confirmation hearings. I can't wait for them to start, inane questioning, grandstanding, knee jerk opposition and all.

- basman

June 11, 2009 at 11:35am

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THE WHITE HOUSE Office of the Press Secretary ________________________________________________________

FOR IMMEDIATE RELEASE June 19, 2009 REPUBLICANS GROUPS/ACTIVISTS:

- Anonymous

June 19, 2009 at 5:12pm

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